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57 U. Louisville L. Rev. 313 (2018-2019)
Big Data and Artificial Intelligence: New Challenges for Workplace Equality

handle is hein.journals/branlaj57 and id is 325 raw text is: BIG DATA AND ARTIFICIAL INTELLIGENCE: NEW CHALLENGES FOR WORKPLACE EQUALITY Pauline T Kim* Big data and artificial intelligence are increasingly being used by employers in their human resources processes in ways that control access to employment opportunities. This Article, based on remarks delivered as the Carl A. Warns, Jr, Keynote Speaker, describes some of those developments and explains how practices like targeted online recruitment strategies and the use of hiring algorithms to screen applicants raise a significant risk of discriminating against protected groups such as women and racial minorities. It then considers some of the challenges these technologies pose for existing anti-discrimination law and suggests ways that the law should be interpreted to address these new threats to workplace equality. I. INTRODUCTION Big data and artificial intelligence seem to be everywhere these days. This data revolution promises that as we gather more and more data, and use computers to analyze that information, we can solve all kinds of problems- from optimizing medical care to assembling a winning baseball team. The workplace is no different. The vast amounts of data and increased computing power now available are transforming the workplace. We are seeing rapid changes in how work gets done, who performs work, and what skills are needed. These developments raise significant challenges, but I am going to put aside the questions that have received the most attention recently-such as whether Uber and Lyft drivers should be classified as employees or independent contractors, or whether robots will take all of our jobs.i Instead, I am going to assume that despite the remarkable changes going on around us, the economy will still require workers in the future, and * Daniel Noyes Kirby Professor of Law, Washington University School of Law. These remarks were delivered as the Carl A. Warns, Jr. Keynote Speaker on June 29, 2018 at the University of Louisville Brandeis School of Law. Many thanks to Adam Hall for research assistance. I See Razak v. Uber Techs. Inc., No. 16-573,2018 WL 1744467 (E.D. Penn. Apr. 11, 2018) (3d Cir. argued Jan. 15, 2019) (district judge ruled that Uber drivers were independent contractors); David Z. Morris, Uber Drivers Are Employees, New York Unemployment Insurance Board Rules, FORTUNE (July 21, 2018), httpJ/fortune.comt2l107/21/uber-drivers-employees-new-york-unemployment/; see also Alex Williams, Will Robots Take Our Children's Jobs?, N.Y. TIMES (Dec. 11, 2017), https://www.nytimes.com/2017/12/1 l/style/robots-jobs-children.html. 313

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