Illinois Human Rights Act Amended to Address Use of Artificial Intelligence in Employment Practices

On August 9, 2024, Governor J.B. Pritzker signed H.B. 3773, which amended the Illinois Human Right Act ("IHRA") to make it unlawful for employers to use artificial intelligence ("AI") in employment practices, including "recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment," if the AI has the effect of subjecting employees to discrimination on the basis of protected classes. While the amendment speaks in terms of employees, it is presumed based on "recruitment" this will apply to job applicants as well.

Under the amendment, AI is defined to include "a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendation, or decisions that can influence physical or virtual environments." AI includes generative AI, a form of AI that simulates human-produced content. The amendment also requires employers to provide notice to employees if the employer is using AI as part of the above-quoted employment practices and prevents an employer from using zip codes as a proxy for protected classes.

As the amendment is part of the IHRA, it applies to any employer with one or more employees during 20 or more calendar weeks within the year of the violation, but does not apply to, among others, religious entities and educational institutions. The legislation, which goes into effect Jan. 1, 2026, also authorizes the Illinois Department of Human Rights to adopt any rules necessary to implement and enforce the new law, including, but not limited to, "the time period for providing notice, and the means for providing notice." As with other sections of the IHRA, an employer is subject to liability if the use of AI in the above practices results in discrimination against an individual in a protected class.

A separate bill, H.B. 5116, currently pending in the Rules Committee, would require employers using automated decision-making tools to conduct annual impact assessments to identify potential adverse impacts and outline safeguards put in place to address any predictable risks like algorithmic discrimination.

Companies making use of AI as part of their employment practices should prepare for implementation of the new law, including compliance with notice provisions. Please contact Rachel Bossard at 312-840-7029 or Alex Marks at 312-840-7022 if you have any questions about use of AI in employment practices or compliance with this specific amendment.