On August 9, 2024, Illinois Governor J.B. Pritzker signed HB 3773 into law, amending the Illinois Human Rights Act (IHRA) to expressly regulate the use of artificial intelligence (AI) for employment decisions. HB 3773 is the second Illinois law that regulates workplace AI. As we previously reported, in August 2019, Illinois enacted the first of its kind statute, the Artificial Intelligence Video Interview Act (AIVIA), which requires employers who use AI-enabled video interviewing technology to provide applicants advanced notice of the use of the AI, information regarding how the AI works and the characteristics evaluated, and obtain prior consent from applicants. And, while not necessarily directed exclusively at workplace AI tools, as we also previously reported, an employer’s use of AI-powered facial expression and screening technology could also implicate the requirements of the Illinois Biometric Information Privacy Act (BIPA).
HB 3773 has a potentially broader application than either AIVIA or BIPA. HB 3773 provides two new definitions:
Artificial Intelligence
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.
Artificial intelligence also includes generative artificial intelligence.
Generative Artificial Intelligence
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:
A recent decision from the Northern District of Illinois highlights new legal hurdles for employers using AI-powered video interview technologies under Illinois’ Biometric Information Privacy Act (BIPA), 740 ILCS 14/15. In Deyerler v. HireVue, initially filed over two years ago in January 2022, a class of plaintiffs alleged that HireVue’s AI-powered facial expression and screening technology violated BIPA. According to the complaint, HireVue collected, used, disclosed, and profited from “biometric identifiers” without complying with the requirements of BIPA. ...
On February 2, 2023, the Illinois Supreme Court filed an opinion in Jorome Tims v. Black Horse Carriers, Inc., holding that Illinois’ Biometric Information Privacy Act (BIPA) is subject to a single, five-year statute of limitations period.
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