Protecting Workers' Civil Rights in the Digital Age
ARTICLE SUMMARY
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.
KEY TAKEAWAYS
- 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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About Ifeoma Ajunwa
Ifeoma Ajunwa is the AI.Humanity Professor of Law and Ethics and the Founding Director of the AI and the Law Program at Emory Law. Starting January 2024, she will also be the Associate Dean for Projects and Partnerships. Additionally, Professor Ajunwa has been a Faculty Associate at the Berkman Klein Center at Harvard University since 2017. Her research interests are at the intersection of law and technology with a particular focus on the ethical governance of workplace technologies, and also on diversity and inclusion in the labor market and the workplace.
