Reconsidering discrimination grounds in the data economy: An EU comparison of national constitutions

Abstract

The principle of equal treatment (i.e., all people have the right to be treated equally) is protected by non-discrimination provisions in national constitutions across the EU as well as the EU Charter of Fundamental Rights (CFEU). These provisions specify which grounds (e.g., gender, race, religion) are prohibited to use as the basis for making decisions on people, such as offering a person a job. In the data economy, in which large amounts of personal data are collected and analyzed, it has become possible to make decisions on people on the basis of all kinds of grounds, also grounds that are not protected in anti-discrimination law (e.g., zip code, shoe size, wealth). Even though mostly unintentional, patterns revealed by sophisticated data analysis can turn out to be discriminatory, either directly or indirectly. Particularly indirect discrimination (i.e., discrimination by proxy) can be hard to discover and enforce. From a substantive perspective, these technological developments also raise the question which discrimination grounds should be protected, since discrimination grounds are in flux and not harmonized across the EU. In this paper, through legal comparison, discrimination grounds across EU national constitutions and the CFEU are compared, to identify overlaps and differences. This overview is then used to start the discussion on the extent to which current legislation is still appropriate in the data economy or should perhaps be reconsidered.