[co-authors: Stephanie Kozol*, Nick Gouverneur**]
On January 9, New Jersey Attorney General (AG) Matthew J. Platkin and the Division on Civil Rights (DCR) launched a new Civil Rights and Technology Initiative aimed at addressing the potential for discrimination and bias associated with artificial intelligence (AI) and other decision-making technologies. The announcement is one of many recent examples of AG’s leading the development of AI regulation. The New Jersey initiative is informed by recommendations from Governor Phil Murphy’s Artificial Intelligence Task Force, which emphasized the need for public education on bias and discrimination related to AI deployment.
AG’s Guidance
Platkin published guidance to explain how the New Jersey Law Against Discrimination (LAD) may apply to to “algorithmic discrimination” which may be inherent in certain decision-making technologies. Under LAD, New Jersey residents are protected from any algorithmic discrimination resulting from a covered entity’s use of automated decision-making tools such as AI. Covered entities include, but are not limited to, employers, housing providers, places of public accommodation, credit providers, and contractors.
The guidance explains how tools used in various business practices, including in the context of employment, housing, places of public accommodation, credit, and contracting may violate LAD. For example, in the employment context, automated decision-making tools have been used to determine whether an employee should be retained or terminated. While these tools streamline and simplify processes, their use may result in racial and gender discrimination based on the tools’ design, training, or deployment.
The guidance makes clear that covered entities can violate LAD without any intent to discriminate, including when third parties develop an automated decision-making tool and the covered entity simply deploys it. Specifically, tool deployment may violate LAD if its use results in either disparate treatment or disparate impact based on protected characteristics. The law also provides recourse for those affected by algorithmic discrimination when the decisions of automated decision-making tools result in the preclusion or impediment of reasonable accommodations.
Civil Rights Innovation Lab
Additionally, the DCR has established a Civil Rights Innovation Lab to leverage technology to prevent and remedy discrimination. The lab is intended to find and develop technology to bolster DCR’s enforcement, outreach, and public education efforts. Currently, DCR is exploring partnerships: (1) to create a blueprint how to use AI responsibly in processing and responding to complaints in an efficient and effective manner; (2) to expand DCR’s enforcement capabilities; (3) to improve accessibility to resources addressing the misuse of automated decision-making tools systems; and (4) to better inform citizens of their rights under LAD.
Why It Matters
New Jersey’s initiative is yet another example of a state AG warning companies to use caution when developing and deploying automated decision-making tools such as AI lest they violate existing state laws—many of which the AGs are accustomed to enforcing. The AGs of Oregon, Texas, and Massachusetts have all recently issued similar guidance or taken similar action in this regard. In the absence of specific “AI” laws, AGs are making clear that they will not hesitate to enforce state consumer protection, privacy, or antidiscrimination laws as they deem necessary. Particularly as AI proliferates, AGs will continue to shape the regulatory landscape through traditional state law enforcement and companies must stay informed of how AGs are using their existing legal tools to avoid unnecessary regulatory scrutiny.
*Senior Government Relations Manager
**Associate
