AI Regulation Continues to Grow as Illinois Amends Its Human Rights Act

Following laws enacted in jurisdictions such as Colorado, New York City, Tennessee, and Illinois’s own Artificial Intelligence Video Interview Act, on Aug. 9, Illinois Gov. J.B. Pritzker signed House Bill 3773, also known as the “Limit Predictive Analytics Use” bill. The bill amends the Illinois Human Rights Act by adding certain uses of artificial intelligence, including generative AI (GenAI), to the long list of actions by covered employers that could constitute civil rights violations. 

The amendments made by HB 3773 will take effect Jan. 1, 2026, and add two new definitions to the law.

According to the amendments, AI means “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.”

The definition of AI includes GenAI, which has its own definition: “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following: 1) textual outputs, such as short answers, essays, poetry, or longer compositions or answers; 2) image outputs, such as fine art, photographs, conceptual art, diagrams, and other images; 3) multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and 4) other content that would be otherwise produced by human means.”

The plethora of AI tools available for use in the workplace continues unabated as HR professionals and managers vie to adopt effective and efficient solutions for finding the best candidates, assessing their performance, and otherwise improving decision-making concerning human capital. In addition to understanding whether an organization is covered by AI regulations such as HB 3773, it also is important to determine whether the technology being deployed falls within the law’s scope. Assuming the tool or application is not being developed in-house, this analysis will require, among other things, working closely with the third-party vendor providing the tool or application to understand its capabilities and risks.

According to the amendments, covered employers can violate the act in two ways. First, an employer that uses AI with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment and whose actions have the effect of subjecting employees to discrimination on the basis of protected classes under the act may constitute a violation. The same may be true for employers that use ZIP codes as a proxy for protected classes under the act.

Second, a covered employer that fails to provide notice to an employee that the employer is using AI for the purposes described above may be found to have violated the act.

Unlike the Colorado or New York City laws, the amendments to the Illinois act do not require an impact assessment or bias audit. They also do not provide any specifics concerning the notice requirement. However, the amendments require the Illinois Department of Human Rights to adopt regulations necessary for implementation and enforcement. These regulations include rules concerning the time period and means for providing notice.

There will most likely be more regulation in this space. It is expected that some common threads will exist among the various rules and regulations concerning AI and GenAI, but organizations leveraging these technologies will need to be aware of the differences and assess what additional compliance steps may be needed.

Joseph J. Lazzarotti is an attorney with Jackson Lewis in Tampa, Fla. Eric J. Felsberg is an attorney with Jackson Lewis in Long Island, N.Y. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.