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The Takeaway

In light of Illinois’ recent amendments to its Human Rights Act, employers in the state need to review their use of AI to make sure that use doesn’t result in harmful practices and unlawful discrimination against potential and current employees.

Introduction

In August 2024, Illinois Governor JB Pritzker signed into law House Bill (HB) 3773. Known as the “Limit Predictive Analysis Bill,” it amends Sections 2-101 and 2-102 of the Illinois Human Rights Act (Act) to address issues and risks that may arise as artificial intelligence (AI) becomes more prevalent. The bill doesn’t take effect until January 1, 2026, which gives employers time to evaluate their use of AI for employment matters and to ensure none of their practices unintentionally result in unlawful discrimination.

Who’s Covered

The provisions of HB 3773 apply to covered “employers” who are or will be using AI in the workplace. “Employer” has a broad definition under the Illinois Human Rights Act. It includes:

1. those employing one or more employees in Illinois for 20 or more weeks per year
2. those employing one or more employees when a complainant alleges a civil rights violation due to unlawful discrimination based upon his or her physical or mental disability
3. the State and any political subdivision, municipal corporation, or other governmental unit or agency
4. a joint apprenticeship or training committee

Despite its many uses and benefits—and there are many of each—it’s become increasingly clear that overreliance on AI without human interaction creates pitfalls that can be quite costly, including the havoc that may be caused in an employment context. Because employers are increasing their use of AI, it’s important they be mindful of the new provisions in HB 3733 to avoid violating the Act.

What’s Covered

HB 3773 amends Section 2-101 to include new definitions related to artificial intelligence.[1]  The real teeth of the amendments, however, is the expansion of potential violations of the Human Rights Act.

First, they make it a violation for employers to use AI that has the effect of subjecting employees to discrimination based on protected classes or to use zip codes as a proxy for protected classes.

Second, employers are required to tell employees and prospective employees if they use AI in:

• recruiting, hiring, promoting, or renewing employment
• selecting for training or apprenticeship
• discharging or disciplining employees
• making tenure decisions
• creating the terms, privileges, or conditions of employment

It's worth noting that although the Act has been amended, regulations related to these changes have not yet been issued. However, employers should expect these new regulations in the future.

Ensuring Compliance

To ensure compliance, employers should first identify and inventory any AI platforms they’re using for recruiting, hiring, promoting, and other activities related to employment-related decisions. Once those AI platforms are identified, employers need to understand the specific parameters and factors they’re using to make or assist in these employment-related decisions to ensure that none are being used in a way that may result in unintentional yet still unlawful discrimination.

After that initial evaluation, employers should continue to conduct routine, periodic reviews of their use of AI in making employment decisions. Indeed, unlike other states (such as Colorado) that have passed similar laws, the amendments to the Act do not yet include mandated audits. Such a requirement may be inevitable, but careful review and analysis of AI usage now allows employers to get ahead of these potential requirements. Early and ongoing review of these processes will also help employers mitigate any potential legal exposure.

Conclusion

AI is everchanging, and failing to understand and monitor its use may lead to claims that the employer is engaged in unlawful practices.

HeplerBroom’s attorneys regularly post blogs that help keep you up to date on developments in employment and labor laws in Illinois, Missouri, and Indiana. In addition, our employment law team can assist you in reviewing your company’s practices and evaluating them for compliance with existing employment and labor laws.

[1] For example, “artificial intelligence” is defined as “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.” “Generative artificial intelligence” is defined as “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content.” This output can include textual outputs, image outputs, multimedia outputs, and any other content that would otherwise be produced by humans.