Protecting Workers' Civil Rights in the Digital Age

Privacy and Security and Artificial Intelligence

Article Snapshot


Ifeoma Ajunwa


North Carolina Journal of Law & Technology, Vol. 21, Issue 4, pp. 1-26, 2020


Automated hiring, including automated video interviews, raises concerns about employment discrimination and privacy. Workplace wellness programs and electronic workplace surveillance raise similar concerns.

Policy Relevance

Legislators should enact rules to prevent automated discrimination and to protect workers’ privacy.

Main Points

  • Traditional employer-employee relationships raise issues surrounding the "quantified worker," as new technologies are used to subject workers to surveillance and minute measurements of productivity, and wellness.
  • Automated hiring systems may deliberately or inadvertently support or enable discrimination based on race, gender, age, or other qualities.
    • Design features allow “culling” of applicants with some traits without leaving a record.
    • Facially neutral variables can be used as proxies for race or gender.
    • Intellectual property law keeps features of automated hiring systems secret.
    • Workers cannot control transfer of worker data from one system to another.
  • Automated video interview systems trained using data mainly from white males will disadvantage female and non-white applicants.
  • A cause of action should be added to Title VII, making use of hiring practices with a particularly egregious impact on protected categories of workers recognizable as discrimination per se.
  • Federal legislators and regulators should require internal and external audits of automated hiring platforms, similar to mandated self-audits of financial institutions.
  • Hiring platforms should be required to design their systems to retain data and keep records, to avoid thwarting anti-discrimination rules.
  • Collection of genetic data as a part of workplace wellness programs undermines protection for workers provided by the Genetic Information Non-Discrimination Act and the Americans with Disabilities Act, and policymakers should not allow this.
  • Two proposals would help protect employee data.
    • An Employee Privacy Protection Act would bar workplace surveillance practices that extend beyond work-related locations or activities.
    • An Employee Health Information Privacy Act to protect the most sensitive type of employee data, including health and genetic data collected by workplace wellness programs.

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