New Jersey AI Guidance: Employers must comply with state anti-discrimination standards
The New Jersey Law Against Discrimination (“LAD”) applies to algorithmic discrimination – discrimination that results from the use of automated decision-making tools – in the same way it has long applied to other forms of discriminatory conduct. The New Jersey Law Against Discrimination (LAD) applies to algorithmic bias – discrimination resulting from the use automated decision-making tools – in the same way that it has for many years applied to other forms discriminatory conduct. . . Has the potential to revolutionize industries. . . it is also critically important that the needs of our state’s diverse communities are considered as these new technologies are deployed.” This move is part of a growing trend among states to address and mitigate the risks of potential algorithmic discrimination resulting from employers’ use of AI systems.
LAD’s Prohibition of Algorithmic Discrimination
The guidance explains that the term “automated decision-making tool” refers to any technological tool, including but not limited to, a software tool, system, or process that is used to automate all or part of the human decision-making process. Automated decision making tools can include technologies such as generative AI models, machine-learning tools, traditional statistical tools, or decision trees. The LAD has a broad purpose to eliminate discrimination and does not differentiate between the mechanisms used. The LAD will still hold employers accountable for discriminatory practices even if they rely on automated systems. Even if the employer has no intention to discriminate and even if the automated decision-making system was developed by a third party, an employer can still violate the LAD. The LAD prohibits algorithmic bias on the basis of race, religion or color, nationality, sexual orientation, pregnancy and breastfeeding, sex and gender identity. It also prohibits algorithmic bias when it precludes or impedes the provision of reasonable accommodations, or of modifications to policies, procedures, physical structures, or other policies, in order to ensure accessibility for people based on their disability, religion, pregnancy, or breastfeeding status. The LAD also prohibits algorithmic discrimination when it precludes or impedes the provision of reasonable accommodations, or of modifications to policies, procedures, or physical structures to ensure accessibility for people based on their disability, religion, pregnancy, or breastfeeding status.
Unlike the New York City law that restricts employers’ ability to use automated employment decision tools in hiring and promotion decisions within New York City and requires employers to perform a bias audit of such tools to assess the potential disparate impact on sex, race, and ethnicity, there is no audit requirement under the LAD. However, the Attorney General’s guidance does recognize that “algorithmic bias” can occur in the use of automated decision-making tools and recommends various steps employers can take to identify and eliminate such bias, such as:
implementing quality control measures for any data used in designing, training, and deploying the tool;
conducting impact assessments;
having pre-and post-deployment bias audits performed by independent parties;
providing notice of their use of an automated decision making tool;
- involving people impacted by their use of a tool in the development of the tool; and
- purposely attacking the tools to search for flaws.
- This new guidance highlights the need for employers to exercise caution when using artificial intelligence and to thoroughly assess any automated decision-making tools they intend to implement.
