Background
All people have the fundamental right to be free from discrimination. Various civil rights laws protect this right. These laws prohibit many forms of discriminatory conduct. For example, discrimination may be prohibited on the basis of age, gender, race, ethnicity, religion, and disability. Antidiscrimination laws also cover sexual orientation, gender identity, or other forms of group identity. The effectiveness of antidiscrimination provisions often depends on policies or programs to provide equal opportunities to groups that have suffered or are suffering discrimination. Enforcement agencies, such as the Equal Employment Opportunity Commission, must be able to collect data on discriminatory practices in order to identify problems and develop remedies.
Discrimination can take many forms:
- Valuable opportunities or benefits such as work, credit, or public or private goods or services may be denied to members of a protected class.
- Hate crimes can target people based on their age, gender, race, or other protected class.
- Abusive practices, such as predatory financial products, that have a disparate impact on certain groups.
- Some seemingly neutral practices may have a disparate impact on certain groups. For example, hiring practices can effectively result in age discrimination (see also Employment Discrimination Against Older Workers).
Individuals must retain the right to take private action for discrimination claims. This ensures that those who are discriminated against can be compensated. It complements government enforcement efforts.
Algorithmic decision tools: The use of very large, complex data sets and algorithms is increasingly informing consequential decisions. Consequential decisions include those that affect health and financial well-being, such as determinations of whether a person is qualified for a job, is creditworthy, qualifies for health services, or is eligible for government benefits.
The use of algorithms in these situations has the potential to amplify systemic discrimination. Digital discrimination and algorithmic bias pose new challenges for lawmakers. Existing civil rights laws may not be broad enough or clear enough to account for these situations. Some entities are not covered by these laws, including online platforms or apps that serve as intermediaries between employers and applicants or banks and prospective customers. As a result, such entities cannot be held accountable for discriminating against people based on race, gender, age, or other protected groups. That poses risks to equality and fairness. In addition, these algorithms are inherently complex and opaque. As a result, it can be difficult for people to effectively challenge discrimination using current law (see also Algorithmic Accountability).
CIVIL RIGHTS: Policy
CIVIL RIGHTS: Policy
Civil rights laws enforcement
Policymakers should protect and enforce the fundamental right of all people to be free from discrimination. They should enact and enforce civil rights statutes. They should eliminate practices that target specific groups for discrimination and exploitation. Policymakers should collect and analyze data on discriminatory practices to identify problems and assist in developing effective remedies.
Government agencies and entities should comply with all applicable federal, state, and local civil rights laws. State governments should waive their sovereign immunity to suits for damages under these laws. Doing so would ensure that state government employees are protected to the same degree as other employees.
Policymakers should enact and enforce policies and programs that seek to redress past and current discrimination. They should ensure equal opportunity for all.
Government agencies should conduct outreach to bilingual communities to educate and inform them about how to obtain enforcement of their civil rights.
When filling civil rights positions, the government should hire only people who are committed to vigorous enforcement and meaningful implementation of civil rights laws.
Congress and state legislatures should be vigilant in monitoring the administration of civil rights laws, consistent with their broad remedial purposes. They should amend civil rights laws as needed to restore essential protections that may have been weakened by the courts.
Protection against hate crimes
Legislators should enact and strengthen laws against hate crimes. These laws should be vigorously enforced.
Algorithmic decision tools
Consumer protection and antidiscrimination laws that apply in the context of human decisions should be adapted as necessary to ensure they effectively apply to algorithmic decision tools (see also Algorithmic Accountability).
Employers or other entities that rely on algorithms to make employment decisions should only be allowed to assert that there is a business necessity when:
- reasonable effort has been undertaken to evaluate and eliminate the potential discriminatory impact; and
- the algorithmic tool has been evaluated for accuracy, reliability, and fairness prior to deployment and routinely thereafter.
If it is not reasonably possible to calculate the impact of each input or factor in an algorithm on a decision, the algorithm as a whole must be considered the specific practice causing the unjustifiable disparate impact on a protected class.
Policymakers should amend the key federal civil rights laws that prohibit discrimination in public accommodations, private contracting, and housing to state explicitly that they bar age discrimination. This includes the Fair Housing Act, as well as Section 1981 and Title II of the Civil Rights Act.
Civil rights laws—particularly those addressing hiring, terminations, compensation, housing, and credit—should include “aiding and abetting” provisions. Any entity that assists an employer, employment agency, creditor, or another covered entity in violating those laws should also be considered covered entities under the laws and subject to suit for any civil rights violations.
Policymakers should protect consumers from the discriminatory use of information developed from data-driven inferences about health in employment, health insurance, and other appropriate contexts.
Job applicants should be receive meaningful notification about how they will be assessed so that they can determine whether to seek reasonable accommodations.