Is it legal for companies to use AI to analyze facial expressions in interviews

Legality Depends Significantly on Jurisdiction

Whether it’s legal for companies to use AI facial expression analysis during job interviews depends significantly on the specific jurisdiction involved, since there’s no single, uniform national law directly addressing this exact practice — some places have specific relevant legal requirements, while others currently lack a law directly and explicitly addressing it.

Jurisdictions With Specific Biometric Privacy Requirements

Some jurisdictions, notably Illinois under its Biometric Information Privacy Act, have specific legal requirements around collecting biometric data, which can include certain types of facial analysis, generally requiring informed consent from the individual and specific disclosures about how the collected data will be used, stored, and eventually destroyed, with meaningful legal consequences for companies that fail to comply with these requirements.

Jurisdictions Without a Specific, Direct Law

In many other jurisdictions, there isn’t a specific law directly and explicitly banning or regulating AI facial expression analysis in hiring interviews, meaning the practice isn’t automatically illegal there in the same specific, direct way it would be if conducted without proper consent in a jurisdiction like Illinois with a specific biometric privacy statute.

Why General Discrimination Law Can Still Apply Regardless

Even in jurisdictions without a specific biometric privacy law, general employment discrimination laws still apply to hiring practices broadly, meaning if facial expression analysis produces discriminatory outcomes — disproportionately disadvantaging candidates based on race, disability, or another legally protected characteristic — this could still create legal exposure under existing discrimination law, independent of any specific biometric-focused statute.

Why This Remains a Genuinely Evolving Legal Area

Given growing public and regulatory scrutiny of this specific practice, along with documented scientific concerns about the reliability and fairness of facial expression analysis as a hiring tool, this area of law continues to evolve, with additional jurisdictions considering or enacting specific legislation addressing biometric data use and automated employment decision tools more broadly.

Why Companies Considering This Practice Should Seek Specific Legal Guidance

Given this genuinely varied and evolving legal landscape, companies considering using AI facial expression analysis in hiring generally need to evaluate the specific legal requirements applicable in every jurisdiction where they operate and hire, rather than assuming a single, uniform national standard governs this practice everywhere.

Bottom Line

The legality of AI facial expression analysis in interviews varies significantly by jurisdiction — some places, like Illinois, have specific biometric privacy laws requiring consent and disclosure, while many other jurisdictions currently lack a law directly addressing this exact practice, though general discrimination laws can still apply if the analysis produces discriminatory outcomes, and this legal landscape continues to evolve with growing scrutiny.

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