Illinois’ first-of-its-kind legislation aimed at regulating the use of artificial intelligence in video interviews for Illinois-based positions goes into effect on January 1, 2020. The Artificial Intelligence Video Interview Act will make employers’ use of artificial intelligence to analyze applicant-submitted video interviews more complicated at a time when employers are increasingly relying on the technology to streamline the hiring process and support diversity initiatives. Despite the benefits of facial recognition technology, proponents of the law claim these technologies perpetuate gender, racial, age and other biases that can led to employment discrimination.

Facial Recognition Technology and the Potential for Bias

In the hiring process, facial recognition technologies assist employers by analyzing images or videos of job applicants’ faces (e.g., brow raising, eye widening, smiling, etc.) and use of language and verbal skills (e.g., passive or active voice, speed, tone, etc.) to infer characteristics about them that correlate to job performance that can then be ranked against other applicants. This process exposes employers to potential risk under antidiscrimination laws because, according to proponents, if the data used to train these technologies is based on similar data of successful candidates and there was a prior history of biased hiring that led to a homogeneity in hired candidates, then a bias towards that group is introduced into the technology and reflected in the selections made. Proponents also argue that these technologies can incorrectly identify individuals by race and gender and misread applicants’ physical and verbal cues, causing individuals to be excluded from consideration when they would actually perform well. They also point to studies showing strong correlations between certain body and verbal characteristics and gender that could lead facial recognition technologies to generate biased outcomes if the technology is designed to select candidates with those characteristics and exclude others.

What the Artificial Intelligence Video Interview Act Does

The new law imposes an informed consent obligation on employers seeking to use artificial intelligence analysis of applicant-submitted videos. Specifically, the new law forces employers, regardless of size or revenue, to do all of the following when considering applicants for job positions based in Illinois before asking applicants to submit video interviews:

1. NOTICE – Employers must notify applicants that artificial intelligence technologies may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position;
2. EXPLANATION – Employers must provide applicants with information explaining how the artificial intelligence technologies work and what general types of characteristics are used to evaluate applicants; and
3. CONSENT – Employers must obtain consent from the applicant to be evaluated by artificial intelligence technologies.

The new law also restricts the employer’s distribution of interview videos and imposes a duty to destroy. The employer cannot share the applicant’s interview video with anyone except those whose expertise or technology is necessary in order to evaluate the applicant’s fitness for a position. The employer must also delete the video upon request from the applicant within 30 days of the request and must instruct others who may have obtained the video to delete the video.

Ambiguities in the Law

The new law leaves employers in the dark on the following issues:

1. A definition for “artificial intelligence”;
2. The specific information that must be provided to candidates in the disclosure;
3. The acceptable methods to establish consent from candidates (e.g., written statements or click wrap agreement);
4. The availability of a private right of action for violations; and
5. The remedies available for violations, if any.

Key Guidance for Employers 

In light of the ambiguities under the new law, employers seeking to fill any position in Illinois are strongly encouraged to consult with legal counsel before using any facial recognition technology to analyze video interviews.