Abstract
Abstract The article analyses what is distinct about the manner in which the delegation of the decision-making task to an artificial intelligence system produces harm from the standpoint of the prohibition of discrimination. It explores the manner in which the context of digital discrimination challenges the application of the Convention on the Elimination of all Forms of Discrimination Against Women (cedaw). The article suggests how the subject matter of cedaw may be rethought to enable it to respond to digital discrimination. It formulates a legal test which can be added to the existing toolbox without the need to amend the treaty. The article offers approaches to interpreting cedaw teleologically in order to enable it to remain relevant in the face of technological innovation.
Highlights
In June 2020 the United Nations (UN) Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E Tendayi Achiume called on States to protect individuals from discrimination in the context of the use of artificial intelligence decision-making processes.[1]
The term ‘digital discrimination’ denotes discrimination which occurs as an outcome of the use of ‘automated decisions taken by algorithms.’[5]. Hiring is one of the contexts in which organisations have an interest in using artificial intelligence systems.[6]
Since States adopted Article 3 to cover unanticipated ways in which individuals may experience discrimination,[251] it supports the conclusion that the cedaw Committee should develop new concepts of discrimination to reflect new knowledge of the mechanisms involved in producing inequality
Summary
In June 2020 the United Nations (UN) Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E Tendayi Achiume called on States to protect individuals from discrimination in the context of the use of artificial intelligence decision-making processes.[1]. Krupiy comprehensive approach to the protection against discrimination in comparison with general international human rights law treaties.[21] cedaw placed an additional obligation on States to combat the structural causes of gender discrimination through introducing the concept of transformative equality.[22] The article advances knowledge by proposing how the cedaw provisions may be developed through legal interpretation to enable the treaty to respond to digital discrimination. The Committee on Economic, Social and Cultural Rights clarifies that there should be ‘relative disadvantages for some groups’ for there to be indirect discrimination.[63] By requiring States to achieve substantive equality,[64] the cedaw Committee mitigates in part the concern that in order to be recognised as unlawful the discriminatory practices have to affect a sufficient number of individuals This is because it is concerned with whether there is equality of opportunity rather than with whether a neutral measure disproportionately affects a group in a negative manner. Equal Opportunity Law (Cambridge University Press 2017) 150. Ibid 123. Ibid, 116
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