Entering a relatively new frontier in employment discrimination law, the Maryland legislature has passed legislation restricting employers’ use of facial recognition technology in the hiring process. The bill becomes effective on October 1, 2020.

Under the new law, Maryland employers may not use a “facial recognition service” for the purpose of creating a “facial template” during an applicant’s interview for employment. The law defines “facial recognition service” as any technology that “analyzes facial features and is used for recognition or persistent tracking of individuals,” whether in still images or video. “Facial templates” are defined as a “machine-interpretable pattern of facial features” that are extracted from images by a facial recognition service.

The law permits applicants to consent to the use of facial recognition technology during an interview. To do so, applicants must sign a waiver which, among other things, must be written in plain language, include the date of the interview, and provide an express consent to use of the technology.

Recent media reports have cast doubt on the effectiveness of facial recognition technology. In December 2019, the National Institute of Standards and Technology found that facial recognition efforts suffered from had substantially higher error rates in attempting to identify people of color, women, and elderly persons. These inherent biases and disparities pose a significant risk of applicants and employees bringing discrimination claims against employers who use this technology to inform their employment decision-making.

In addition to potential discrimination issues, facial recognition technology may put employers at higher risk of data breaches, as storage of employee biometric information  such as facial recognition data may pose a tempting target for hacking.

In passing this law, Maryland is likely to be at the start of a trend of state legislatures taking a closer look at the use of facial recognition technologies for employment purposes. Employers deciding to use these technologies should make sure to monitor developing law in jurisdictions where they operate.

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