Age Discrimination by Platforms

This Article explores how platforms in the workplace (both social media and hiring platforms) might enable, facilitate, or contribute to age discrimination in employment. The Article starts with evidence of age discrimination on work platforms particularly with regard to design elements, such as the availability of age-related proxies. The article then describes how these platforms use practices that redline, cull, or dissuade older job applicants. It then presents the challenging legal issues raised by the mediation of discriminatory employment practices by an information intermediary in the form of a platform, notably the problems of meeting the burden of proof and the assignation of liability. The Article then puts forth a three-part proposal to combat age discrimination in the face of platform authoritarianism. These proposals include: 1) reinforcement of the disparate impact cause of action for the Age Discrimination in Employment Act (ADEA) via codification; 2) education for employers regarding the use of ageist language in job ads; and 3) new EEOC guidelines for criteria documentation and data retention for job advertisement, recruitment, and hiring platforms

The Paradox of Automation as Anti-Bias Intervention

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic hiring and to explore potential legal approaches to rectifying them, the Article brings together two streams of legal scholarship: law & technology studies and employment & labor law. Counterintuitively, the Article contends that the framing of algorithmic bias as a technical problem is misguided. Rather, the Article’s central claim is that bias is introduced in the hiring process, in large part, due to an American legal tradition of deference to employers, especially allowing for such nebulous hiring criterion as “cultural fit.” The Article observes the lack of legal frameworks to account for the emerging technological capabilities of hiring tools which make it difficult to detect bias. The Article discusses several new approaches to hold liable for employment discrimination both employers and makers of algorithmic hiring systems. Particularly related to Title VII, the Article proposes that in legal reasoning corollary to extant tort doctrines, an employer’s failure to audit and correct its automated hiring platforms for disparate impact should serve as prima facie evidence of discriminatory intent, for the proposed new doctrine of discrimination per se. The Article also considers approaches separate from employment law, such as establishing consumer legal protections for job applicants that would mandate their access to the dossier of information consulted by automated hiring systems in making the employment decision

The Auditing Imperative for Automated Hiring

The high bar of proof to demonstrate either a disparate treatment or disparate impact cause of action under Title VII of the Civil Rights Act, coupled with the “black box” nature of many automated hiring systems, renders the detection and redress of bias in such algorithmic systems difficult. This Article, with contributions at the intersection of administrative law, employment & labor law, and law & technology, makes the central claim that the automation of hiring both facilitates and obfuscates employment discrimination. That phenomenon and the deployment of intellectual property law as a shield against the scrutiny of automated systems combine to form an insurmountable obstacle for disparate impact claimants.To ensure against the identified “bias in, bias out” phenomenon associated with automated decision-making, I argue that the employer’s affirmative duty of care as posited by other legal scholars creates “an auditing imperative” for algorithmic hiring systems. This auditing imperative mandates both internal and external audits of automated hiring systems, as well as record-keeping initiatives for job applications. Such audit requirements have precedent in other areas of law, as they are not dissimilar to the Occupational Safety and Health Administration (OSHA) audits in labor law or the Sarbanes-Oxley Act audit requirements in securities law.I also propose that employers that have subjected their automated hiring platforms to external audits could receive a certification mark, “the Fair Automated Hiring Mark,” which would serve to positively distinguish them in the labor market. Labor law mechanisms such as collective bargaining could be an effective approach to combating the bias in automated hiring by establishing criteria for the data deployed in automated employment decision-making and creating standards for the protection and portability of said data. The Article concludes by noting that automated hiring, which captures a vast array of applicant data, merits greater legal oversight given the potential for “algorithmic blackballing,” a phenomenon that could continue to thwart many applicants’ future job bids

Combating Discrimination Against the Formerly Incarcerated in the Labor Market

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting such legislation — could help to reduce labor market discrimination against the formerly incarcerated. In so doing, this Part analyzes the influence of racial impact statements in the few states that have implemented them. Part II of this Essay examines the possibility of a contractual solution that could help to decrease discrimination against the formerly incarcerated in the private labor market, particularly by those employers who rely on the labor of imprisoned individuals. Specifically, this Part uses the fact that many private corporations rely on and profit from low-wage prison labor to argue that the state penal institutions that lease prisoners to such corporations should push for contractual agreements that stipulate that corporations relying on prison labor must revoke policies that bar employing the formerly incarcerated upon their release. In addition, this Part explicates how contractual stipulations may also provide for affirmative hiring policies for the formerly incarcerated. Finally, this Essay concludes by highlighting how failure to address continued labor market discrimination against the formerly incarcerated could render the formerly incarcerated a permanent economic underclass, thereby undermining notions of fairness and equality

Combating Discrimination Against the Formerly Incarcerated in the Labor Market

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting such legislation—could help to reduce labor market discrimination against the formerly incarcerated. In so doing, this Part analyzes the influence of racial impact statements in the few states that have implemented them. Part II of this Essay examines the possibility of a contractual solution that could help to decrease discrimination against the formerly incarcerated in the private labor market, particularly by those employers who rely on the labor of imprisoned individuals. Specifically, this Part uses the fact that many private corporations rely on and profit from low-wage prison labor to argue that the state penal institutions that lease prisoners to such corporations should push for contractual agreements that stipulate that corporations relying on prison labor must revoke policies that bar employing the formerly incarcerated upon their release. In addition, this Part explicates how contractual stipulations may also provide for affirmative hiring policies for the formerly incarcerated. Finally, this Essay concludes by highlighting how failure to address continued labor market discrimination against the formerly incarcerated could render the formerly incarcerated a permanent economic underclass, thereby undermining notions of fairness and equality

Brokering Freedom: An Organizational Case Study of Reentry Organizations

This dissertation employs an organizational approach to examine how reentry organizations seek to provide social value as public-private partnerships with the mission statement of aiding the reintegration of the formerly incarcerated. With the help of a case study of a reentry organization in Cleveland, Ohio, I examine the sociological significance of the discursive “brokerage metaphor” of reentry organizations as brokers of the social and cultural capital the formerly incarcerated require as catalysts for their reintegration back into society. Based on ethnographic data and in-depth field interviews collected over a period of 16 months in Cleveland, Ohio, my research finds that the “brokerage metaphor” for reentry elides important factors which play an integral role in the organizational behavior of reentry organizations and the sociological experience of reentry for the formerly incarcerated. These other factors notably include the competitive and regulatory organizational environment of the reentry organization, and the intersectional identities of formerly incarcerated women. These external factors reveal the paradox of the public-private partnership represented by the reentry organization wherein some obstacles that stymie the objectives of the reentry organization might be attributed to its public partner, the government. Furthermore, my research finds that besides the brokerage of social and cultural capital, reentry organizations as public-private partnerships provide other tangible benefits for achieving the reentry of the formerly incarcerated, such as a remove from the carceral continuum that invites participation and creates the space for community-building. This dissertation research advances a new direction for the study of public-private partnerships wherein the lens of inquiry is not merely on the private partner, rather, the spotlight is also trained on the external impediments that prevent the organization from achieving full social value. This direction for research bodes well for determining appropriate and effective ethical policy interventions to addressing pressing social problems through public-private partnerships and social enterprise