GARBAGE IN, GARBAGE OUT: NEW REGULATIONS ADDRESS AI DISCRIMINATION
By Ward Heinrichs Esq., San Diego Employment Attorney
You have probably heard the term “garbage in, garbage out.” It means that computer-generated responses are only as good as the information put into them. In other words, if the input data or algorithm has flaws, the resulting response will be flawed too.
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The California Civil Rights Department applied the “garbage in, garbage out” concept when it amended the discrimination regulations to include potential discrimination at the hands of AI. After all, if the data or criteria AI uses to measure job seekers, promotion selections, and raises results in the disproportionate exclusion of people because of race, sex, religion, or some other protected characteristic as defined under the Fair Employment and Housing Act (FEHA), then discrimination may be the result. The new regulations attempt to address such FEHA discrimination.
These regulation amendments became effective on October 1, 2025. As stated, they make AI generated employment decisions illegal if they result in discriminatory outcomes, but they actually regulate more than that. The amendments more broadly apply to any Automated Decision System (ADS).
ADS is defined as: “A computational process that makes a decision or facilitates human decision making regarding an employment benefit . . .” Any computer-generated decision, even if it is not derived from a robot that learns from prior input (AI), is covered because presumably it uses “data processing techniques” and selection criteria to generate employment decisions.
The newly amended regulations apply to all employers in California. They also require employers to keep computer related information, such as, input data, selection criteria, audit findings, and selection results for four years. Employers should also be ready to engage in the interactive process and offer reasonable accommodations in situations where disability or religious discrimination looms.
The regulations encourage employers to test the ADS they use and to audit them regularly. In fact, if a company tests and audits its ADS and keeps the results of them, then those results can provide defenses to discrimination claims. Additionally, all traditional defenses to discrimination also apply, depending on the circumstances of the case.
We are falling in love with the power of AI. That power can lead us to believe that AI results are infallible. The new discrimination regulations remind us that even the most powerful robots are only as good as the information and selection criteria that we humans put into them. If we put garbage into them, we will get garbage out.
Based in San Diego, California the Employment Law Office of Ward Heinrichs represents both employers and employees in almost all areas of labor law. He and his firm litigate cases that have been filed in many different parts of California. Visit www.BestEmploymentAttorneySanDiego.com
