Scholarship@WashULaw

Document Type

Article

Publication Date

2020

Publication Title

Virginia Law Review

Abstract

Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When predictive algorithms are used to allocate information about opportunities like employment, housing, and credit, they can reproduce past patterns of discrimination and exclusion in these markets. This Article explores these issues by focusing on the labor market, which is increasingly dominated by tech intermediaries. These platforms rely on predictive algorithms to distribute information about job openings, match job seekers with hiring firms, or recruit passive candidates. Because algorithms are built by analyzing data about past behavior, their predictions about who will make a good match for which jobs will likely reflect existing occupational segregation and inequality. When tech intermediaries cause discriminatory effects, they may be liable under Title VII, and Section 230 of the Communications Decency Act should not bar such actions. However, because of the practical challenges that litigants face in identifying and proving liability retrospectively, a more effective approach to preventing discriminatory effects should focus on regulatory oversight to ensure the fairness of algorithmic systems.

Keywords

Discrimination, Bias, Algorithms, AI, Automated Decision-Making, Occupational Segregation, Equality, Employment

Publication Citation

Pauline Kim, Manipulating Opportunity, 106 Va. L. Rev. 867 (2020)

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