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, sex, sexual orientation, gender identity, race, ethnicity, religion, and disability.
People are harmed by discrimination in many ways. For example, they may be denied healthcare, employment, housing (including long-term care facilities), education, and other essential services. Groups who are often discriminated against include, but are not limited to women, older people, people from communities of color, people with disabilities, and people who identify as LGBTQ+.
The effectiveness of antidiscrimination laws often depends on policies or programs to provide equal opportunities to groups that are discriminated against. 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 related to working, obtaining credit, securing housing, or receiving public or private goods or services may be denied to people based on age, race, ethnicity, sex (which includes gender identity and sexual orientation), ability level, and other protected characteristics. Hate crimes can likewise target people based on protected characteristics and classes.
- Abusive practices, such as predatory financial products that charge higher interest rates and fees to people from communities of color compared with rates and fees charged to white people.
- Some seemingly neutral practices may have a disparate impact on certain groups. For example, hiring advertisements using age-biased language, such as those seeking applicants who are “energetic,” “digital natives,” or “recent graduates,” can effectively result in age discrimination (see also Employment Discrimination Against Older Workers).
A private right of action is especially important for discrimination claims. It provides the right to go to court so that people who are discriminated against can be compensated and treated fairly. It complements government enforcement efforts.
Algorithmic decision tools: The use of very large, complex data sets and algorithms is increasingly informing consequential decisions that affect health and financial well-being. For example, algorithms may determine whether a person qualifies for a job, credit, healthcare services, or 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 tailored to address these situations. Some entities are not covered by these laws. This includes online platforms or apps that serve as intermediaries between employers and applicants or banks and prospective customers. As a result, such entities often evade liability for discriminating against people. Lack of accountability poses serious 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:
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reasonable effort has been undertaken to evaluate and eliminate the potential discriminatory impact, and
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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 employment (e.g., hiring selections, 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 receive meaningful notification about how they will be assessed so that they can determine whether to seek reasonable accommodations.