Last week, Governor J.B. Pritzker signed into law an amendment to the Illinois Human Rights Act that: 1) prohibits employers from utilizing artificial intelligence (“AI”) in a manner that discriminates against its employees or applicants, and 2) requires companies to disclose any use of AI for hiring purposes to its employees.
The Amendment, which does not take effect until 2026, provides that when AI is used in the hiring or promotion process, it will be considered a violation of the Human Rights Act, if it “has the effect of subjecting employees to discrimination on the basis of protected class.” The scope of this prohibition goes beyond the hiring context to include more nuanced employment decisions such as selecting employees for training, apprenticeship and tenure, as well as decisions regarding discipline or discharge.
Just how could AI discriminate against applicants and employees who may belong to a protected class? By way of example, if AI software analyzes algorithmic data and determines (not incorrectly) that female applicants are statistically more likely to take parental leave than male applicants, and therefore categorically excludes all (or even most) women from being hired, the AI usage would have a discriminatory impact on women. Companies will not be able to shield themselves from liability by relying on their good intentions. The Amendment is concerned solely with AI’s impact on employees, not the objectives of those implementing it.
The Amendment also makes it a violation of the Human Rights Act for an employer to fail to provide notice to its employees when using AI in employment considerations. While some employers may successfully utilize AI for purposes of efficiency and expediency at present, in preparation for the Amendment taking effect, companies must consider the risk of using AI in hiring, promotion or retention decisions starting in 2026.
Additional rules and guidelines may also be forthcoming from the Illinois Department of Human Rights as the Amendment calls upon the Department to implement and enforce any rules necessary to put the Amendment into action, including any notice requirements.
We at SFBBG are closely tracking developments in the employment and labor context and are available to ensure that your company complies with the most up-to-date legal requirements. If you have questions regarding your company’s compliance with the Illinois Human Rights Act, please contact Kelly Cronin by e-mail at [email protected] or call (312) 648-2300.
