Foley & Lardner LLP partner Chanley Howell shared important context on the growing movement to regulate artificial intelligence at the state level in the Law360 article, “3 State AI Bills For Workplace Discrimination Attys To Watch.”
Howell said employment settings are a prominent place for AI-driven decision making, and an intention of these legislative efforts is to safeguard civil rights in that context.
“Where we hear about it a lot…would be in employment decisions,” he explained. “That could be in deciding who to interview or whether to interview a candidate, it could be about whether to hire a particular candidate, it could be once the individual is an employee [situations involving] retention, promotions, demotions or firing,” Howell continued. “All of those in the employment context would be a consequential decision.”
Assessing a bill introduced in Virginia, Howell said that to ensure compliance if it becomes law, employers will need to create a written AI risk management policy that should align with “a recognized framework like the National Institute of Standards and Technology,” which include conducting an AI impact assessment.
He shared that Virginia’s proposed law would apply if AI systems substantially influenced employment-related decisions, noting that there may be a need for further guidance from regulators or judicial proceedings as to what exactly qualifies as a consequential decision or sufficient level of influence.
“A shorthand of what makes AI high risk is if it’s being used to a significant degree to make decisions that can really impact human rights and civil rights,” he added.
