Employment Discrimination by Algorithm: Can Anyone be Held Accountable?

32 Pages Posted: 16 Jun 2021 Last revised: 11 Aug 2022

Date Written: November 1, 2020

Abstract

The use by employers of algorithmic systems to automate or assist with recruitment decisions (Algorithmic Hiring Systems (‘AHSs’)is occurring in Australia without legal oversight. Regulators are yet to undertake an analysis of the legal issues posed by their use. Academic literature on this topic is limited and judicial guidance is yet to be provided.

This article examines to what extent, if at all, Australian anti-discrimination laws are able to regulate the use by employers of discriminatory AHSs. First, it examines the re-emergence of blatant discrimination by digital job advertising systems. Second, it considers who, if anyone, is liable for automated discrimination. Third, it examines the law’s ability to regulate ’proxy’ discrimination. Finally, it explores whether indirect discrimination provisions can provide redress for the disparate impact of an AHS.

Australia’s anti-discrimination laws are long overdue for reform. This article concludes that new legislative provisions, as well as non-binding guidelines, specifically tailored to the use by employers of algorithmic decision systems are needed.

Keywords: Algorithmic Discrimination, Algorithmic Discrimination in Employment, Algorithmic Bias, Algorithmic Hiring System, Algorithmic Decision Making

Suggested Citation

Sheard, Natalie, Employment Discrimination by Algorithm: Can Anyone be Held Accountable? (November 1, 2020). University of New South Wales Law Journal, 2022, Vol. 45(2), 617, Available at SSRN: https://ssrn.com/abstract=3866363

Natalie Sheard (Contact Author)

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

HOME PAGE: http://https://scholars.latrobe.edu.au/nsheard

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