Research On The Legal Regulation Of Algorithmic Employment Discrimination

Efficiency-oriented algorithmic technology has innovated the way employers manage human resources,playing an increasingly important role in hiring,training,evaluation and assessment,and decision-making.It helps employers make employment decisions efficiently and is therefore widely used.However,the seemingly reasonable and neutral algorithmic technology may infringe on the equal employment rights of workers even though it improves the efficiency of human resource management decisions of employers.There have been cases of algorithmic employment discrimination against workers in practice.The design of China’s existing legal system against employment discrimination is based on the principles of information constraints and legal responsibility bearing,forming a prevention mechanism with information constraints as the core and a remedy mechanism with responsibility rules as the core.By analyzing the operational mechanism of algorithms and the reasons for algorithmic employment discrimination,it is found that algorithmic employment discrimination has characteristics such as greater concealment,wider scope of influence,more diverse types of discrimination,and higher complexity compared to traditional employment discrimination.The current legal system is inadequate in dealing with algorithmic employment discrimination.The challenges posed by algorithms to the existing legal system against employment discrimination should be recognized as follows:on the one hand,algorithms have profoundly changed the expression and scope of employment discrimination,and the intervention of algorithms has made employment discrimination more hidden,precise and efficient.Employers can deprive and violate the equal employment rights and interests of disadvantaged labor groups with seemingly neutral practices.The existing legal system against employment discrimination in China still reflects the thinking and model of employment discrimination in the industrial era.When faced with the combination of“algorithm+discrimination”,structural defects of the system is revealed,the unclear responsibility of algorithmic employment discrimination,the failure of preventive mechanisms,and the difficulty of relief mechanisms have all contributed to the urgent need for protecting the equal employment rights of workers in the era of artificial intelligence.On the other hand,algorithms have not created a disruptive impact on the existing legal system against employment discrimination.By exploring the origins of the regulation of algorithmic employment discrimination,we find that algorithmic employment discrimination is not a new thing arising from social development,but a result of the combination of technological development and traditional social contradictions.In other words,the technological logic followed by algorithms,coupled with the social rules of employment discrimination,created a new carrier to express employment discrimination.In order to clarify the social mechanism of algorithmic employment discrimination and to define the specific path of employment discrimination embedded in algorithms,it is necessary to return to China’s existing legal framework and carefully examine how the system against employment discrimination can be improved in the face of the algorithms as a new factor.According to the trigger mechanism and characteristics of algorithmic employment discrimination,optimizing the existing legal system against employment discrimination can serve as an effective method.The algorithmic employment discrimination is brand new,but the legal prevention system is already there.To regulate algorithmic employment discrimination,it is necessary to start from three aspects:the responsible party,the behavior pattern,and the relief mechanism,in order to construct a complete legal system for regulating algorithmic employment discrimination.First,clarify the responsible party.Through the analysis and examination of three representative new theories of responsibility allocation for algorithmic employment discrimination,it is found that,given the current level of technology and development of algorithms,they have not fundamentally challenged the theory of legal subjects.Therefore,algorithms should not be given the status of legal subjects.Instead,the responsibility for algorithmic employment discrimination should be determined through a perspective of integrating technology and law.Secondly,innovate preventive mechanisms.The aim of preventive mechanisms is to prevent employment discrimination at the front-end by reducing the"information gap" between employers and employees in algorithmic decisionmaking.Based on the two reasons why algorithms challenge the preventive mechanisms of traditional employment discrimination,innovative preventive mechanisms should be created from the aspects of improving personal information protection for employees and governance of algorithmic power for employers,in order to better cope with algorithmic employment discrimination.Finally,improve the relief mechanism.If algorithmic employment discrimination is not curbed as early as it’s gen-erated and causes actual harm and infringes on workers’ equal employment rights,workers need to be compensated through legal liability.On the one hand,the elements of algorithmic employment discrimination should be clearly defined,including behavioral elements such as algorithmic decision-making and outcome elements such as adverse consequences,as well as causal connections and subjective elements such as fault.On the other hand,based on the recognition that algorithmic employment discrimination is essentially a conflict of interests between groups,and in practice it is reflected as a conflict of interests between individuals within groups,multiple relief paths should be clarified.To oppose algorithmic employment discrimination,it is necessary to protect not only the private rights and interests of individual workers but also the public interests of such groups.Administrative organs and judicial institutions should work together,encourage public interest litigation and build a multifaceted and comprehensive remedy mechanism.