Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores how these data-driven systems may threaten workers’ interests in privacy and autonomy, and considers the extent to which existing legal frameworks address these concerns. Finally, it briefly describes the European Union’s much more restrictive regime of data protection as a useful comparator. This article argues that the growing use of AI at work raises significant policy concerns about discrimination, privacy, and autonomy that are not adequately addressed by current U.S. law.
Kim, Pauline and Bodie, Matthew T., Artificial Intelligence and the Challenges of Workplace Discrimination and Privacy (August 13, 2021). 35 ABA Journal of Labor and Employment Law 289 (2021).