The protection of the fundamental right to equality in the age of artificial intelligence: Has anti-discrimination law become unfit?
By Linda Senden & Raphaële Xenidis.
With the development of artificial intelligence, an increasing number of complex algorithms are filtering through in our daily decision-making processes, influencing our choices and even our preferences and tastes in a rather unnoticed way. Yet, this has important repercussions for a number of areas of life regulated by EU law, such as employment, the consumption and supply of goods and services, data protection, and relations with public authorities to cite just a few. How to ensure that core principles of EU law, such as the principle of non-discrimination and its counterpart, the Union’s citizens fundamental right to equality, are respected in an area of complex multi-level and automatized decision-making?
Implicit bias, stereotypes, and symbolic harms spread through machine-learning processes invisibly and at great speed and risk shaping discriminatory decisions, which bear grave material consequences for people’s daily lives. Questions arise, such as: How to ensure that protected categories such as gender, race or disability, do not intervene at any step of an employer’s decision to hire, from the diffusion of a job ad until the signature of a work contract? How to make a case for discrimination in front of the lack of transparency of algorithms, the non-traceability of decision-making chains, and the multiplication of proxies? How to hold AI service providers accountable and who is liable?
Artificial intelligence thus poses numerous new challenges, which the current EU equality framework seems unfit to address. These challenges exist at two levels: the conceptual level and the enforcement level. Taking EU anti-discrimination law as a case study, the aim of this contribution will be:
- first to examine which challenges lay in front of the EU legislator. We aim to identify the main friction points between the conceptual framework offered by EU non-discrimination law and the new digital reality of the internal market.
- second, to examine the unfitness of EU equality law from an enforcement perspective. We propose to map the challenges that are likely to arise in the near future.
Finally, we will propose reflections on possible pathways to ensure the continuous protection of the fundamental right to equality and the general principle of non-discrimination in EU law in the digital age.
For participation in the seminar please use this registration form no later than 18 February 2019 , 11:00.
The seminar is part of a CECS seminar series on constitutional dimensions in the digital era.
Sandwich and soft drinks will be served.
Linda Senden studied international law, European law and European Studies at the University of Amsterdam. In 2003 she defended her PhD on Soft law in European Community law at Tilburg University and she was appointed professor of European law at this university in 2004 Since 2011, she holds the chair of European law at Utrecht University (https://www.uu.nl/medewerkers/LAJSenden/Profiel). She is the director of the LL.M program on European law, co-director of RENFORCE; the Utrecht research centre on ‘Shared Regulation and Enforcement in Europe’ and a member of the Committee of European integration of the Advisory Council International Affairs to the Dutch government and parliament. Her research focuses mainly on issues of EU institutional and constitutional law and on various forms of European – public and private – regulation. Currently, she is finalizing an edited volume on Private Regulation and Enforcement in the EU, which will be published by Hart Publishing in 2019. She also has a track record in researching EU gender equality law and has been involved in numerous research projects in this area. Her latest publication in this field concerns a comparative report prepared within the framework of the European Commission’s gender equality network on the regulatory, policy and enforcement approaches in 33 European states to promote the number of women on corporate boards (https://www.equalitylaw.eu/downloads/4537-gender-balanced-company-boards-in-europe-pdf-1-68-mb). As of January 2018, she is one of the directors of the multidisciplinary UU Hub on Gender and Diversity (see https://www.uu.nl/en/research/institutions-for-open-societies/hubs/gender-and-diversity) and as of January 2019, she is the coordinator of the European Commission’s gender equality network.
Raphaële Xenidis is a researcher in EU gender equality law at the International and European Law Department of Utrecht University and a Ph.D. candidate in European anti-discrimination law at the European University Institute. She has been working on issues of intersectionality, discrimination and equality law in the framework of her dissertation at the EUI since 2014 and her research interests are intersectionality and the law, European anti-discrimination law, critical and feminist legal studies, legal mobilization issues and bias and discrimination in algorithmic decision-making. At Utrecht University, Raphaële is a member of the SIM (human rights) and RENFORCE (EU law) research centers and works for the gender equality law stream of the European Equality Law Network, coordinated by Prof. Linda Senden and Dr. Alexandra Timmer. Raphaële is also part of the managing team of the Gender and Diversity Hub, an interdisciplinary research platform on gender equality and diversity issues.