Civil Rights Council approves second modified text for automated decision‑making rules, opens 15‑day comment period

The Civil Rights Council voted unanimously to publish a second modified text of proposed changes to employment regulations governing automated decision systems for a 15‑day public comment period.

Council members and staff said the revisions respond to extensive public comment and clarify definitions and record‑keeping requirements while striking certain previously proposed language. Council members approved the notice on a roll‑call vote after staff advised the shorter comment window was required to meet the one‑year administrative rulemaking timeline.

The proposed second modified text, provided as attachment B to the meeting materials, strikes a proposed definition of “adverse impact,” revises definitions for “agent,” “proxy,” “automated decision system,” and “automated decision system data,” and makes targeted changes to several FEHA regulation sections, including 11,013 (record keeping), 11,016 (pre‑employment ADS use), 11,020 (aiding and abetting liability), 11,071 (medical or psychological examinations), and 11,072 (qualification standards, tests and other selection criteria). The draft also removes previously proposed language in 11,017.1 about employer disclosure to applicants when a conditional offer is withdrawn because an automated decision system informed the withdrawal, and adds clarifying language that both evidence and the lack of evidence of anti‑bias testing may be relevant in claims or defenses.

Council Member Glater, speaking for the Algorithms and Bias Subcommittee, told the council the second modified text reflects “extensive public comment” and staff work to “enhance clarity and consistency” in the proposed regulations. Jonathan, a staff member, directed the council to attachment B and summarized the highlighted changes.

Public commenters who spoke during the meeting largely praised the removal of the adverse‑impact definition but urged the council to clarify whether the change creates uncertainty and whether developers and third parties remain subject to liability. Ken Lang, representing the California Employment Lawyers Association, said the elimination of the adverse‑impact definition was “a good move” but warned that reserving that section for future rulemaking could create ambiguity; he urged clearer treatment of developers in the agent definition and asked why the draft removed the proposed disclosure requirement when conditional offers are withdrawn. Ashley Hoffman of the California Chamber of Commerce also supported removing the adverse‑impact definition and asked for clarity on the reserved language. Tim Newman of Tech Equity asked the council to preserve coverage and transparency for third‑party developers, warning that striking language could create a loophole for accountability.

Department staff and subcommittee members responded that the council had already received extensive comments in earlier phases of the rulemaking (initial text published May 17, 2024; public hearing July 18, 2024; first modified text approved Oct. 17, 2024 and subject to an extended comment period that closed Nov. 18, 2024) and that the one‑year regulatory timeline limited the department’s ability to further extend the comment window. Rachel Langston, Assistant Chief Counsel, advised the council that keeping the comment period to 15 days was necessary to meet schedule constraints.

A motion to publish the second modified text and open a 15‑day comment period was moved and seconded; the council approved the motion on a roll‑call vote: Chair Kara Garcia, Council Member Glater, Council Member Hong and Council Member Wilenski each voted “aye.”

Votes at a glance

• Approval to publish second modified text for proposed modifications to employment regulations regarding automated decision systems for a 15‑day public comment period — approved (roll‑call vote: Garcia Aye; Glater Aye; Hong Aye; Wilenski Aye).

• Approval of minutes from Oct. 17, 2024 — approved (roll‑call vote recorded during the meeting; Garcia Aye; Glater Aye; Hong Aye; Wilenski Aye).

What happens next

If the council’s vote is reflected in the formal notice, the department will publish opening and closing dates for the 15‑day comment period and accept written comments; the rulemaking file will later include a final statement of reasons summarizing responses to comments once the process concludes.

Context

The rulemaking proceeds under the Administrative Procedure Act and implements provisions of the Fair Employment and Housing Act (FEHA). The council and staff said the second modified text responds to extensive prior public input and aims to clarify how existing anti‑discrimination law applies to employer use of automated decision systems in hiring and other employment contexts. Public commenters asked the council to preserve clear accountability for developers and third parties that supply or design ADS tools.