By: Grace Boudjalis and Bre Timko
As artificial intelligence (AI) technologies continue to evolve in the workplace, legislation focusing on regulating such technologies is also becoming more common. A recent example comes from Illinois, where Governor JB Pritzker signed House Bill (HB) 3773 into law on August 9, 2024. HB 3773 introduces AI regulations to the Illinois Human Rights Act and will go into effect on January 1, 2026. According to the law, AI refers to machine-based methods that create output (predictions, recommendations, etc.) that can influence employment decisions. HB 3773 follows HB 2557, also known as The Artificial Intelligence Video Interview Act, which requires employers to notify applicants when artificial intelligence is used to analyze their video interviews and obtain explicit consent before conducting such analyses.
HB 3773 amends Illinois’ existing Human Rights Act to formally address the use of AI in employee selection. While the AI-specific additions represent a small portion of the law, the implications are significant for organizations who employ Illinois residents. Notable implications include the following:
- The prohibition of AI-based employment discrimination. HB 3773 prohibits employers from using AI in recruitment, hiring, promotion, and other employment-related decisions in ways that could result in discrimination based on protected classes such as race, gender, or religion. This includes discrimination that is unintentional and includes inputs that can serve as a proxy for discrimination, such as zip code. Unlike other recent state and local AI laws, HB 3773 does not require formal bias audits or impact assessments. However, because the law prohibits discrimination against employees based on protected class characteristics (intentional or not), employers would benefit from conducting internal adverse impact analyses to protect themselves against potential violations of the law.
- The requirement for employers to notify employees/applicants that AI is being used. Employers must inform employees if AI is being used in employment processes, promoting transparency. While an exact form of notification is not specified within the bill, the law mandates the Illinois Department of Human Rights adopt rules regarding employee notice and timeline.
- The broad list of protected classes under the law. HB 3773 extends protections provided under Title VII against discrimination based on characteristics like citizenship status, work authorization status, and pregnancy-related conditions, which increases employer burden in terms of designing and conducting adverse impact studies.
- The requirement to provide reasonable accommodations for religion and pregnancy. Employers are required to reasonably accommodate employees’ sincerely held religious practices and pregnancy-related conditions unless it imposes an undue hardship on the business. This includes modifications or adjustments to the job application process, meaning that employers may need to be prepared to offer a non-AI alternative if an applicant is unable to complete an AI-based employment assessment due to a conflict with a sincerely held religious belief or if an applicant is unable to complete the AI-based assessment due to pregnancy, childbirth, or a condition related to pregnancy or childbirth.
HB 3773 emphasizes protecting employees' rights in the evolving landscape of AI in the workplace while broadening anti-discrimination protections. Enforcement of the law has been tasked to both the Illinois Department of Human Rights and Illinois Human Rights Commission, which will rely on reports from the public that alleged discrimination has occurred.
For updates on this and other laws related to the regulation of AI in employment selection, stay tuned to DCI Blogs. Be sure to also check out the AI Toolkit available on the DCI website.
