The California Civil Rights Council has been working on proposed regulation revisions to include automated decision-making in the requirements under the Fair Employment and Housing Act.

The Council met on October 17, 2024, for public comment on the most recent version of the regulations and voted to extend the comment period to 30 days, though typically the period is only 15 days.
Here are some of the highlights of the proposed regulations:

 Definitions

1. An automated decision system (ADS) is defined as a “computational process that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision-making that impacts applicants or employees.” the definition excludes word processing software, spreadsheet software, and map navigation systems.
2. Adverse impact (or disparate impact) includes the use of a facially neutral practice that may create a substantial disparity in the rate of selection in hiring, promotion, or other employment decisions that work to the disadvantage of a group of individuals on a basis protected by the Fair Employment and Housing Act (FEHA).
3. “Proxy” means a technically neutral characteristic or category correlated with a basis protected by FEHA.
4. The regulations add examinations or inquiries administered in whole or part of an ADS as being included under the definition of medical or psychological examination.

Revisions to Existing Regulations

Under the proposed regulations it is unlawful for an employer to use an ADS or selection criteria that harms an applicant or employee on a basis protected under FEHA.

The regulations propose that ADS that measures an applicant’s skill, dexterity, reaction time, and/or other abilities or characteristics may require employers to provide accommodations as they would in other situations. The same would be the case for ADS used to measure reactions or similar during interviews.

 The regulations add ADS to the list of methods for searching for criminal background history that are prohibited before a conditional offer of employment.

Recordkeeping

Subject to the current requirements under FEHA regulations to preserve personal and other employment records received by an employer, employers must include the following:

1. All applications
2. Personnel records
3. Membership records
4. Employment referral records
5. Selection criteria
6. Automated decision system data
7. Other records related to a policy practice or decision affecting an applicant or employee

For those interested in submitting comments about the proposed regulations, they can be submitted until November 18, 2024, and addressed to:

Civil Rights Department
c/o Rachael Langston, Assistant Chief Counsel
555 12th Street – Suite 2050
Oakland, CA 94607
Telephone: (916) 478-7251

Comments can also be submitted via email to: council@calcivilrights.ca.gov. The Council has indicated a preference for submissions via email.