Countenancing Employment Discrimination

Abstract

Employing facial recognition technology implicates anti-discrimination law under Title VII of the Civil Rights Act when used as a factor in employment decisions. The very technological breakthroughs that made facial recognition technology commercially viable—data compression and artificial intelligence— also contribute to making facial recognition technology discriminatory in its effect on members of classes protected by Title VII. This Article first explains how facial recognition technology works and its application in employee background checks. Then, it analyzes whether the use of facial recognition technology in background checks violates Title VII under the disparate impact theory of liability due to the known issue of skewed data sets and disproportionate inaccuracy on some populations. The Article concludes by calling on the Equal Employment Opportunity Commission to issue specific guidance warning employers of impending liability under Title VII, including class action liability, due to the use of facial recognition technology, and to use its enforcement authority to file lawsuits against employers who continue to use the technology.