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Employment Discrimination by Algorithm: Can Anyone be Held Accountable? (Advance)

Author

Natalie Sheard

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 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.

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