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Algorithms perpetuating biases

Campaign group Global Witness has, as part of its ‘digital threats’ campaign, published its report on its research of algorithms used by Facebook to promote job ads. It is suggested by Global Witness that Facebook is potentially breaking anti-discrimination and data protection laws and it has formally complained to the Equality & Human Rights Commission and Information Commissioners Office to investigate the same.

Global Witness’ findings

Test job adverts used solely for experimental purposes were used by Global Witness on Facebook in order to assess the impact of Facebook’s algorithms on viewership of its job adverts.

It was established by Global Witness that the algorithms used by Facebook under its ‘optimisation for ad delivery’ feature led to the following statistics:

Type of job Targeted audience
Mechanic 96% of people shown a mechanic job ad were men
Nursery 95% of people shown a nursery job ad were women
Psychologist 77% of those shown a psychologist job ad were women
Pilot 75% of people shown a pilot job ad were men

Ironically, Global Witness observes that despite Facebook requiring recruiters “to confirm that they will not discriminate when posting job ads, its own ad delivery system appears to operate in a discriminatory manner.

The impact of any discriminatory measures used by Facebook is, as Global Witness argues, “potentially narrowing opportunities for users and preventing progress and equity in the workplace”.

Global Witness has submitted a complaint to the Equality and Human Rights Committee and the Information Commissioners Office. In a series of recommendations, it is asking, in particular:

  • the UK Equality & Human Rights Commission to investigate whether Facebook’s targeting and ad delivery practices breach the Equality Act 2010;
  • the UK Information Commissioner’s Office to investigate whether Facebook’s ad delivery practices breach data protection legislation.

The legal basis

The main applicable legislation is principally the Equality Act 2010. Although Global Witness acknowledges that “there is not yet any specific legal structure in Great Britain governing unlawful discrimination through algorithms”, it argued that prospective candidates “are protected by the provisions of the Equality Act 2010 in respect of the defined protected characteristics set out within the legislation”.

Global Witness has strong suspicions “that the protected characteristics of both sex and age are engaged”. It quotes Part V of the Equality Act 2010, stating that discrimination is prohibited “in the arrangements A makes for deciding to whom to offer employment”. Global Witness evaluates this in the context of Facebook’s algorithms, explaining that the broad interpretation of that extract from the statute is that it covers “all stages of the recruitment process, including the manner in which the job is advertised, and instructions by employers to discriminate given to recruitment agencies or online agencies. The employer’s obligations not to discriminate also apply to a person who is seeking to recruit employees, even if they are not yet an employer”.

Furthermore, Global Witness points to the significance of Part III of the Equality Act, arguing that it “is concerned with the provision of services to the public or a section of the public” and in the circumstances, “Facebook is a provider of services, and specifically so in respect of its platform for job postings and adverts”. Relying on s. 29 Equality Act 2010, Global Witness claims that “a service-provider must not discriminate against a person as to the terms on which the service is provided, or by subjecting a person to any other detriment”.

In summary, Global Witness observes that “if someone who did not share the protected characteristic would have applied for the job but was not shown the advertisement, they have been placed at a particular disadvantage”.

To conclude, Global Witness argues that Facebook’s conduct “is likely to be categorised either as indirect or direct discrimination”.

Facebook’s position

In a statement, Facebook announced that it is considering making alterations to its targeted ad feature.

Our system takes into account different kinds of information to try and serve people ads they will be most interested in, and we are reviewing the findings within the report.

We’ve been exploring expanding limitations on targeting options for job, housing and credit ads to other regions beyond the U.S. and Canada, and plan to have an update in the coming weeks.”

Comment

The Statutory Code of Practice makes it clear that employers must not discriminate against job applicants in, among other things, the arrangements they make for deciding who should be offered employment. Arrangements refer to the policies, criteria and practices used in the recruitment process, including the job advertisement stage.

On the face of it, there appears to be evidence, compiled by Global Witness, to suggest that discriminatory consequences seemingly arise as a result of the algorithm system adopted by Facebook.

Moreover, while Global Witness’ accusations are primarily concentrated against Facebook, it remains to be seen whether the customers of Facebook that are utilising the job advert tool are similarly in danger of falling foul of anti-discrimination laws. If this were to be the case, the ramifications will force Facebook to seriously reconsider the design of its algorithms given that its revenue source is principally derived from advertising. Employers need to be assured that placing a job advert on the social media platform will not put themselves in jeopardy of non-compliance too.

If you have any queries relating to the advertisement of vacancies or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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