New Guidance Explains How Civil Rights Laws Apply to Advanced Technologies; Civil Rights Innovation Lab Will Leverage Technology to Protect Civil Rights 

Guidance on Algorithmic Discrimination

TRENTON — Attorney General Matthew J. Platkin and the Division on Civil Rights (DCR) announced that DCR has launched a new Civil Rights and Technology Initiative to address the risks of discrimination and bias-based harassment stemming from the use of artificial intelligence (AI) and other advanced technologies, and to support innovation by providing guidance to members of the public and regulated entities about how the New Jersey Law Against Discrimination (LAD) applies to the use of these advanced technologies.

As part of the Initiative announced today, Attorney General Platkin and DCR have published a guidance document explaining how the LAD applies to discrimination stemming from the use of advanced technology, which is often referred to as “algorithmic discrimination.” The guidance document provides examples of algorithmic discrimination, describes how the use of AI and other automated decision-making tools can result in bias and discrimination, and explains how DCR applies the LAD’s prohibition against discrimination to the use of these advanced technologies.

Attorney General Platkin and DCR also announced today that, as part of the Initiative, DCR has launched a Civil Rights Innovation Lab that will aim to leverage technology responsibly to advance DCR’s mission to prevent, address, and remedy discrimination. Through partnerships with experts, technologists, and stakeholders, the Innovation Lab will identify and develop technology to enhance DCR’s enforcement, outreach, and public education work, and will develop protocols to facilitate the responsible deployment of this technology.

DCR’s Civil Rights and Technology Initiative is informed by the work of Governor Murphy’s Artificial Intelligence Task Force, which recommended in its Report to the Governor on Artificial Intelligence that DCR issue guidance to educate the public on bias and discrimination in connection with the deployment of artificial intelligence.

“We are excited that New Jersey is on the cutting edge of the technological innovations that are propelling our nation forward, and we are thrilled that our Division on Civil Rights is deploying advanced technologies to help protect our residents from discrimination,” said Governor Phil Murphy. “At the same time as we are using artificial intelligence to help detect discrimination and enforce our civil rights laws, we recognize that the same technologies can be intentionally or inadvertently misused. The Division’s legal guidance will help companies ensure that their own uses of AI comply with the law.”

“Technological innovation is changing the world as we know it, and it has the potential to revolutionize key industries. But it is also critically important that the needs of our state’s diverse communities are considered as these new technologies are deployed. That is why we will continue to make sure that people and companies do not use innovative new technologies to discriminate against and exclude our state’s residents,” said Attorney General Platkin. “Our office will continue to support responsible innovation in New Jersey, and the Initiative announced today will play a critical role in our state’s ongoing efforts to embrace innovation while also addressing the risks it poses.”

“Artificial intelligence and other innovative technologies are reshaping nearly every aspect of society. We are launching our Civil Rights and Technology Initiative and the Civil Rights Innovation Lab to support responsible innovation in our state and address the risk of discrimination stemming from the use of new technologies,” said Sundeep Iyer, Director of the Division on Civil Rights. “With the issuance of new guidance and the launch of our Innovation Lab, we look forward to working with all New Jerseyans to ensure that innovative new technologies are deployed responsibly and do not result in discriminatory outcomes.”

“Responsible use of artificial intelligence technologies offers the potential to enhance government’s ability to deliver services and administer policy,” said Dr. Beth Simone Noveck, New Jersey State Chief AI Strategist. “Government also has a duty to ensure that both the public and private sector use these tools effectively and securely. I applaud Attorney General Platkin and the Division on Civil Rights for their dedication to ensuring that New Jersey continues to be an innovative national leader in demonstrating how to embrace and leverage emerging technology for the benefit of all residents.”

The guidance issued today clarifies that the LAD protects New Jerseyans from algorithmic discrimination stemming from the use of AI and other automated decision-making tools. The guidance provides an overview of the ways these tools are being used in employment, housing, places of public accommodation, credit, and contracting.

The guidance explains that the use of automated decision-making tools, if those tools are not carefully designed, evaluated, and tested, may result in disparate treatment discrimination, disparate impact discrimination, or the failure to provide or account for reasonable accommodations. The guidance includes examples of practices involving the use of automated decision-making tools that may lead to unlawful discrimination. Finally, the guidance clarifies that regulated entities may be liable for algorithmic discrimination resulting from their use of an automated decision-making tool developed by a third-party.

On January 16, the Office of the Attorney General and DCR will host a virtual program – Innovating Fairness: Launch of the Division on Civil Rights’ Innovation Lab – featuring experts in the field. Later this year DCR will make available a free to the public training on bias and discrimination stemming from the use of AI and other automated decision-making tools.  Registration details are available at https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/civil-rights-and-technology/. DCR will also host public education and outreach events across the state to educate the public about their rights under the LAD.

Through its new Civil Rights Innovation Lab, DCR will be exploring partnerships with experts and stakeholders to develop a blueprint for deploying AI-powered tools responsibly to more efficiently and effectively process complaints of discrimination and bias-based harassment, to expand the Division’s enforcement of its laws, to improve accessibility, and to more effectively educate members of the public about their rights under the law. For example, DCR issued a public request for information earlier this year on AI-powered tools that can assist DCR in identifying discriminatory online advertisements for employment and housing to more efficiently identify entities that violate the LAD.

The Civil Rights and Technology Initiative builds upon prior work to address algorithmic discrimination. For example, DCR proposed new regulations that address, among other things, how disparate impact liability under the LAD applies to the use of automated decision-making tools in employment. And DCR earlier this year partnered with the Division of Consumer Affairs to launch a home appraisal discrimination initiative that provides guidance on how the LAD applies to appraisal discrimination, including discrimination in connection with the use of automated valuation models to appraise residential properties.

The guidance was authored by DCR Legal Specialist Emily Armbruster and Deputy Associate Director for Policy Kaley Lentini, under the supervision of Associate Director for Policy, Outreach, and Community Relations Trish Perlmutter.

***

The New Jersey Division on Civil Rights works to prevent, eliminate, and remedy discrimination and bias-based harassment in employment, housing, and places of public accommodation throughout New Jersey. DCR enforces the Law Against Discrimination, the New Jersey Family Leave Act, and the Fair Chance in Housing Act.

To find out more information or to file a complaint, go to www.njcivilrights.gov.

###