Employment discrimination by algorithm: Can anyone be held accountable?

• Published in: University of New South Wales law journal Vol. 45; no. 2; pp. 617 - 648
• Main Author: Sheard, Natalie
• Format: Journal Article
• Language: English
• Published: 01-07-2022
• Subjects: Artificial intelligence; Automation; Decision making; Discrimination in employment; Employees; Evaluation; Moral and ethical aspects; Recruiting; AUSTRALIA
• ISSN: 0313-0096
• DOI: 10.53637/XTQY4027

The use by employers of Algorithmic Hiring Systems ('AHSs') to automate or assist with recruitment decisions 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 antidiscrimination 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 nonbinding guidelines, specifically tailored to the use by employers of algorithmic decision systems are needed.