Natalie Sheard, ‘Employment Discrimination by Algorithm: Can Anyone be Held Accountable?’

ABSTRACT
The use by employers of algorithmic systems to automate or assist with recruitment decisions (Algorithmic Hiring Systems (‘AHSs’)) is on the rise internationally and in Australia. High levels of unemployment and reduced job vacancies provide conditions for these systems to proliferate, particularly in retail and other low wage positions. While promising to remove subjectivity and human bias from the recruitment process, AHSs may in fact lock members of protected groups out of the job market by entrenching and perpetuating historical and systematic discrimination.

In Australia, AHSs are being developed and deployed by employers without effective legal oversight. Regulators are yet to undertake a thorough analysis of the legal issues and challenges posed by their use. Academic literature examining the ability of Australia’s anti-discrimination framework to protect against discrimination by an employer using an AHS is limited. Judicial guidance is yet to be provided as cases involving discriminatory algorithms have not come before the courts.

This article provides the first broad overview of whether, and to what extent, the direct and indirect discrimination provisions of Australian anti-discrimination laws regulate the use by employers of discriminatory algorithms in the recruitment and hiring process …

Sheard, Natalie, Employment Discrimination by Algorithm: Can Anyone be Held Accountable? (November 2020). University of New South Wales Law Journal (forthcoming), volume 45, no 2, 2022.

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