Unlawful Proxy Discrimination: A Framework for Challenging Inherently Discriminatory Algorithms

TL;DR

This paper proposes a legal and technical framework to identify and challenge inherently discriminatory algorithms that proxy protected characteristics, emphasizing the absence of objective justification for direct discrimination in EU law.

Contribution

It introduces the concepts of proxy capacity and proxy use to define inherent direct discrimination in algorithms, linking legal criteria with technical detection methods.

Findings

Legal conditions for proxy capacity and proxy use are analyzed.

Technical approaches for detecting inherent direct discrimination are discussed.

Framework bridges legal concepts with algorithmic identification methods.

Abstract

Emerging scholarship suggests that the EU legal concept of direct discrimination - where a person is given different treatment on grounds of a protected characteristic - may apply to various algorithmic decision-making contexts. This has important implications: unlike indirect discrimination, there is generally no 'objective justification' stage in the direct discrimination framework, which means that the deployment of directly discriminatory algorithms will usually be unlawful per se. In this paper, we focus on the most likely candidate for direct discrimination in the algorithmic context, termed inherent direct discrimination, where a proxy is inextricably linked to a protected characteristic. We draw on computer science literature to suggest that, in the algorithmic context, 'treatment on the grounds of' needs to be understood in terms of two steps: proxy capacity and proxy use. Only where both elements can be made out can direct discrimination be said to be `on grounds of' a protected characteristic. We analyse the legal conditions of our proposed proxy capacity and proxy use tests. Based on this analysis, we discuss technical approaches and metrics that could be developed or applied to identify inherent direct discrimination in algorithmic decision-making.