The New Jersey Attorney General’s Office and the Division of Civil Rights have released guidance clarifying how the New Jersey Law Against Discrimination (NJLAD) protects against algorithmic discrimination resulting from the use of technologies, such as artificial intelligence (AI), by employers.
The Details
The Guidance on Algorithmic Discrimination and the New Jersey Law Against Discrimination (Guidance) covers ways employers can help prevent discrimination or the impediment of reasonable accommodations resulting from the use of automated decision-making tools (ADTs). See the text of the law for definitions and examples.
Note: The Guidance does not add new employer requirements that are not included in the NJLAD or establish rights or obligations beyond existing NJLAD requirements.
Background
The NJLAD prohibits New Jersey employers from discriminating against employees on the basis of certain protected characteristics (actual or perceived), such as age, race, color, religion, ancestry, national origin, sexual orientation, gender, gender identity, gender expression and disability.
Under the Guidance, automated decision-making tools include, but are not limited to, a technological tool, which includes, but is not limited to, a software tool, system, or process that is used to automate all or part of the human decision-making process, such as AI, machine-learning models, traditional statistical tools, and decision trees. See the Guidance for further details on ADTs.
The Guidance
The Guidance clarifies the following relating to the NJLAD:
- The NJLAD applies to discrimination resulting from the use of ADTs in the same way it has applied to other forms of discriminatory conduct (prohibiting all discrimination, including facilitation by ADTs or by human practices).
- An employer is not exempt from violating the NJLAD because a discriminatory policy or practice involves using or relying on an ADT.
- An employer can violate the NJLAD:
- When an employer uses an ADT, they may violate the NJLAD if the tools result in discrimination based on protected characteristics.
- The NJLAD also prohibits algorithmic discrimination when it precludes or impedes the provision of reasonable accommodations (or modifications to policies, procedures, or physical structures) to ensure accessibility for people based on their disability, religion, pregnancy, or breastfeeding status.
The Guidance also:
- Clarifies that bias may be introduced into ADTs under certain conditions, which can reinforce and exacerbate existing disparities and harm marginalized populations.
- Lists the following factors for employer awareness to help identify and prevent AI tools from contributing to discriminatory outcomes in employment:
Next Stepa
New Jersey employers that currently use or are considering using an ADT should:
- Evaluate if their use of an ADT has the potential for bias.
- Follow the proper protocols under the law for compliance with the NJLAD.