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.


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