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SACRAMENTO鈥� Today, the American Civil Liberties Union and the ACLU of Northern California filed a complaint with the California Civil Rights Department (CRD) urging an investigation of Criteria Corporation, a technology corporation that develops and sells assessments used for hiring and other employment processes that raise concerns about discrimination against applicants based on disability, race, and sex. The complaint focuses on one of Criteria鈥檚 assessment products, Emotify, which claims to measure 鈥渆motional intelligence鈥� and an applicant鈥檚 ability to perceive, understand, and manage emotions by asking candidates to interpret facial expressions and match them to descriptions of emotions. Emotify鈥檚 assessment closely mirrors clinical diagnostic tests for autism and related neurodevelopmental conditions, and it may screen out or disproportionately impact qualified individuals with those conditions. 鈥淭here is a long and ugly history of job requirements designed to cut out disabled applicants. Well-qualified autistic people are routinely denied employment over things like not making eye contact, or not making small talk, that have nothing to do with ability to do the job. Baking that discrimination into an app doesn't make it any less discriminatory,鈥� said Colin Killick, executive director at the Autistic Self Advocacy Network. 鈥淲hen hiring tools exclude qualified applicants based on characteristics unrelated to their ability to do the work, they raise serious concerns under discrimination laws.鈥� 鈥淲hen employers use assessment tools that are more likely to reveal a person鈥檚 disabilities rather than their ability to do the job, employers risk missing out on highly qualified candidates. These hiring tools pose an unacceptable risk of amplifying existing discrimination in the workplace and exacerbating harmful barriers to employment for people with disabilities,鈥� said Brian Dimmick, senior staff attorney with the ACLU鈥檚 Disability Rights Program. 鈥淣o applicant should be subjected to a hiring assessment that so closely mirrors clinical diagnostic tools. It's patently unlawful in the early stages of a hiring process, and vendors marketing such products and employers using them in this way risk liability,鈥� said Olga Akselrod, senior counsel, ACLU Racial Justice Program. 鈥淲hat鈥檚 more, vendors should not be marketing assessments that carry a high risk of discrimination based on disabilities, race, and other protected characteristics. Both vendors and employers have a legal obligation to thoroughly vet any assessments to ensure that they comply with anti-discrimination laws.鈥� 鈥淐alifornia has been a leader in protecting people from the harms of discriminatory automated systems, such as AI screening tools that can introduce racial, gender, and disability bias into the hiring process,鈥� said Grayce Zelphin, senior staff attorney at the ACLU of Northern California. 鈥淏y investigating Criteria鈥檚 employment products, the California Civil Rights Department has an opportunity to defend qualified job applicants from unlawful discrimination.鈥� The use of Emotify during the hiring process could violate California鈥檚 Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA). Because the assessment parallels the content of clinical diagnostic tools and is likely to reveal information pertaining to a disability, it likely constitutes a disability-related inquiry, or medical or psychological examination, and is likely to result in unfairly excluding applicants. Both FEHA and the ADA prohibit employers from making disability-related inquiries or requiring medical examinations before a conditional offer of employment, only permitting inquiries into an applicant鈥檚 ability to perform job-related functions at that stage of the hiring process. In addition, Criteria also sells other pre-employment hiring products that raise concerns around discrimination detailed in the complaint, including a cognitive aptitude assessment, personality assessments, and artificial intelligence-based video interviewing and proctoring tools. The AI technologies can introduce or amplify bias by performing worse for disabled applicants, people with accents, and Black, Latine, and Indigenous speakers, leading to hiring decisions that may unfairly disadvantage qualified candidates. The complaint urges CRD to investigate Criteria鈥檚 hiring technologies and practices to determine whether they violate California鈥檚 civil rights protections. A copy of the complaint can be found here.