Civil Rights Council holds hearing on proposed FEHA rules for automated hiring systems; commenters urge protections and clarity

The Civil Rights Council on July 18, 2024 opened a formal rulemaking hearing on proposed amendments to Fair Employment and Housing Act regulations to govern employers’ use of automated decision systems in hiring and employment. Chair David Garcia said the package — proposed for subchapter 2, chapter 5, division 4.1 of title 2 of the California Code of Regulations — is intended to clarify FEHA obligations where automated systems are used and that written comments will be accepted through 5:00 p.m. the same day.

The hearing drew a broad set of voices. Ken Wang, representing the California Employment Lawyers Association and the Tech Equity Collaborative, said automated decision systems are "now ubiquitous in the workplace" and urged broad, future‑proof definitions that include tools that use third‑party data. Wang recommended anti‑bias testing and cautioned that a business‑necessity defense should not shield intentional discrimination.

Alonzo Martinez, chair of the advisory group at the Professional Background Screening Association, urged the council to exclude consumer reporting agencies from employment‑agency and agent definitions and to exempt routine rule‑based automation from ADS coverage, saying CRAs "provide factual data" and do not make hiring decisions.

Community advocates pressed the council to address proxy discrimination and to consider caste. Prasanna Gee of the Ambedkar King Study Circle said caste is prevalent in some South Asian communities and asked that caste be treated explicitly or as a proxy under definitions of ancestry and national origin. Ajinkya Ashok, from the same group, urged resume‑testing experiments to detect caste‑based bias in shortlisting.

Disability advocates, represented by Regina Deangelis of the Association of California State Employees with Disabilities, expressed support for the proposals and urged the council to integrate relevant federal and state disability laws — including the Americans with Disabilities Act and California Civil Code provisions — into guidance and to explicitly require accommodations when ADS are used in interviews.

The Center for AI and Digital Policy recommended three core requirements: clear disclosure when ADS are used; mandatory human oversight for final employment decisions; and pre‑deployment impact assessments. The organization’s representative, Evalina Ayrapetyan, also pointed to the California Privacy Protection Agency’s draft ADS rulemaking as a related effort.

Business groups urged caution. Ashley Hoffman of the California Chamber of Commerce said the draft rules risk conflicting with pending legislation and privacy agency regulations and raised concerns about how the proposed definition of "adverse impact" could differ from established disparate‑impact law. The Society for Human Resource Management noted potential benefits of AI in identifying diverse candidates and warned the regulation could chill adoption.

Council staff and the subcommittee emphasized the length of the rulemaking process; a subcommittee representative said the packet reflects more than three years of meetings and hearings and pointed participants to the 22‑page statement of reasons for detailed explanations.

No final action was taken at the hearing; the council will consider both oral testimony and the written comments in its final statement of reasons as part of the rulemaking record. Chair Garcia noted that if the council later amends the proposed regulations, the public will have a 15‑day window to comment on those specific changes.