You applied for a job. You were qualified. You never got a call back. What you may not know is that an algorithm may have screened you out before a human being ever reviewed your resume.
AI hiring tools are now widely used across California. Companies rely on them to sort resumes, score video interviews, rank candidates, and decide who moves forward in the hiring process. But these tools can carry the same biases that anti-discrimination laws were designed to prevent.
If an AI system filtered you out because of your age, race, disability, or gender, that is still discrimination under California law.
How AI Hiring Tools Work
Employers use automated decision systems (ADS) at nearly every stage of hiring.
These systems go by different names, but they generally fall into a few categories:
- Resume screening software that filters applications based on keywords, education history, or employment gaps
- Video interview platforms that analyze facial expressions, tone of voice, or word choice to assign personality or competency scores
- Chatbot assessments that ask candidates questions and evaluate responses using machine learning models
- Predictive analytics tools that rank candidates based on patterns from past hiring data
The problem is that these systems learn from historical data. If a company historically hired mostly young, able-bodied men for a certain role, the AI may learn to prefer candidates who match that profile. The result is discrimination, even when nobody at the company intended it.
What makes this harder to detect is that the applicant rarely knows AI was involved. You submit an application, never hear back, and assume you were not selected.
In many cases, no human ever saw your resume. A machine made the decision for them.
Can AI Discrimination Violate California Law?
Yes. California’s Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on protected characteristics, including race, sex, age, disability, national origin, religion, sexual orientation, and gender identity. This applies whether a human or a machine makes the decision.
As of October 1, 2025, California’s new FEHA regulations on automated decision systems make this even more explicit. The California Civil Rights Council finalized these rules after a series of public hearings and expert input, and they represent one of the most comprehensive state-level efforts to regulate AI in employment.
Under these rules:
- Employers cannot use an ADS that discriminates against applicants or employees based on any FEHA-protected characteristic
- Liability extends to both intentional discrimination and disparate impact, meaning a tool does not need to be designed to discriminate in order to violate the law
- Employers are responsible for discrimination caused by third-party AI vendors they hire to screen or evaluate candidates
- Employers must retain ADS-related records, including inputs, outputs, and audit results, for at least four years
The regulations also clarify that AI tools analyzing facial expressions, tone of voice, or physical characteristics may discriminate based on race, disability, or national origin. Tools that assess traits like dexterity or reaction time can disadvantage people with disabilities.
And critically, using a characteristic closely correlated with a protected category, known as a “proxy,” can also constitute unlawful discrimination. For example, screening by zip code can serve as a proxy for race or national origin.
What Does AI Discrimination Look Like in Practice?
AI discrimination does not always look obvious. You will not see a rejection letter that says “our algorithm flagged your age as a negative factor.” Instead, the bias is built into how the tool evaluates candidates.
Here are some patterns that may indicate a violation:
- A resume screening tool consistently filters out applicants over 40 because it was trained on data from a company that historically favored younger workers
- A video interview platform gives lower scores to candidates with speech differences, accents, or facial asymmetry linked to a disability or national origin
- A chatbot assessment penalizes applicants who mention career gaps related to pregnancy, medical leave, or caregiving
- An algorithm screens out candidates from certain zip codes that correlate with race or ethnicity
- An AI-driven skills test measures reaction time or fine motor coordination in ways that disadvantage applicants with physical disabilities
The fact that the employer did not personally review your application does not protect them from liability. Under the new regulations, an employer who uses AI without evaluating how it works or testing it for bias creates its own form of legal exposure.
What Should You Do If You Suspect AI Discrimination?
If you applied for a job in California and believe an automated system screened you out based on a protected characteristic, here are the steps to protect your rights:
Document everything. Save your application materials, any communications from the employer, and any information about the hiring process. Note whether you were asked to complete a video interview, online assessment, or chatbot interaction. Screenshot confirmation emails and any job postings that describe the hiring process.
Request information about the process. Under FEHA’s updated regulations, employers have recordkeeping obligations related to ADS. You or your attorney may be able to obtain records about how the tool evaluated you, including the criteria it applied and the scores it generated.
File a complaint with the California Civil Rights Department (CRD). You have three years from the date of the discriminatory act to file an administrative complaint. You can request an immediate right-to-sue notice if you want to go directly to court.
Consult an employment attorney. AI discrimination cases are technically complex. An attorney experienced in California employment law can evaluate your situation, determine whether the employer’s AI tool had a discriminatory impact, and advise you on the strongest path forward.
Can Employers Defend Their Use of AI Hiring Tools?
Yes, but the bar is high. Under the new regulations, employers can point to anti-bias testing as part of their defense. But a single audit at launch is not enough. Courts and the CRD will look at how recent the testing was, how thorough it was, what the results showed, and whether the employer actually made corrections based on those results.
Employers who purchase an off-the-shelf AI tool and deploy it without independent review take on significant legal risk. The regulations make clear that employers cannot avoid liability by blaming a vendor. If the vendor’s tool discriminates, the employer is still responsible.
On the other hand, the absence of anti-bias testing can actually be used as evidence against an employer in a discrimination case. Companies that fail to evaluate their AI tools are in a weaker position to defend themselves if a claim is filed.
Talk to a California Employment Lawyer About AI Discrimination
AI hiring tools are not going away. But the law is catching up. California now has some of the most detailed regulations in the country governing AI in employment decisions, and the rules are clear: if a machine discriminates, the employer is liable.
If you were denied a job, promotion, or other employment opportunity and suspect that an automated system played a role, you have legal options under California law.
At Malk Law Firm, we represent employees and applicants throughout California who have been harmed by discriminatory employment practices.
Contact us today for a confidential consultation to discuss your situation and learn what steps you can take.
