The role of European equality bodies to address algorithmic discrimination
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/13582291241257201 |
| Author | Anna Capellà Ricart |
| Date | 01 September 2024 |
Article
International Journal of
Discrimination and the Law
2024, Vol. 24(3) 194–216
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13582291241257201
journals.sagepub.com/home/jdi
The role of European equality
bodies to address algorithmic
discrimination
Anna Capell`
a Ricart
Abstract
European Union (EU) seems to have the aim to strengthen the role of equality bodies and
encourage the expansion of their scope of application, their functions and their powers.
This implies that they can play an essential role in challenging discriminatory decisions
made through algorithmic systems. Due to the possibility they have to access information,
to issue binding decisions in individual or collective cases of discrimination or to initiate
court proceedings in their own name, they seem like the best positioned to offer an
effective protection against algorithmic discrimination. In this article, we study the latest
regulatory proposals relating to these bodies and which functions they must carry out to
help people that have been discriminated against by artificial intelligence systems.
Notwithstanding we argue that equality bodies have a privileged position to deal with
discriminatory automated decisions, they need independence and human, technical and
financial resources to perform all its tasks and to exercise all its competences effectively,
and this is not always guaranteed.
Keywords
Equality bodies, artificial intelligence, anti-discrimination law, artificial intelligence
systems, European Union
Introduction
European Union (EU) equality bodies, have a fundamental role in overseeing the ap-
plication of anti-discrimination legislation and, due to the powers they are granted,
Institute of Law and Technology (IDT), Autonomous University of Barcelona, Barcelona, Spain
Corresponding author:
Anna Capell`
a Ricart, Institute of Law and Technology (IDT), Autonomous University of Barcelona, Barcelona
08193, Spain.
Email: anna.capella@uab.cat
can play an essential role in challenging decisions made through algorithmic systems
(Benedi Lahuerta, 2021: 407). In this sense, for example, they can assume or alleviate the
responsibility of detecting discrimination and dealing with it that is currently placed on the
person discriminated by an algorithmic system (Hakkarainen, 2021: 18), they can be
multifunctional, centralizing the information of many different people and, given that
their aim is to act for the benefit of general interest, they can ensure that they will not be
instrumentalized for purposes other than the defence of non-discrimination -e. g. avoid the
possibility of a commercial conflict of interest- (Hodges, 2019: 87), as long as good
safeguards are established for their independence (on the independence of administrative
agencies, see Scherer, 2016: 385). In addition, they are uniquely placed to assume the
collective protection that requires algorithmic discrimination. However, there are certain
factors that determine its effectiveness and as Chopin and Germaine (2023: 131) point out,
despite the fact that formal equality has been obtained in most national legislations, more
efforts must be made to achieve substantive equality.
In order to carry out their functions in relation to artificial intelligence (AI) systems, as
Allen and Masters (2020: 11) state, they need guidance on how to apply existing equality
legislation in situations involving the use of AI technologies. Also, they must review their
mandates to ensure they have meaningful and adequate powers to address the new
challenges of AI and its discriminatory impact (Allen and Masters, 2020: 22). However, it
is important to take into account that AI can raise other issues besides discrimination, such
as protection against bodily harm, privacy or massive surveillance, that are also central to
AI-systems oversight and have to be addressed beyond the role of equality bodies.
In this article we argue that the defence of people that have been discriminated by
algorithms must be inextricably linked to the public sector (which looks after the general
interest and not the particular interest), and that this relationship must be translated into
proactive institutional support. We argue that Member States’equality bodies have
relevant competences and prerogatives to challenge algorithmic discrimination, speci-
fying which functions they must carry out to give an effective protection. Finally, we
provide some conclusions.
EU equality bodies as best placed to challenge discriminatory
decision-making made through algorithmic systems
In this section we analyse the configuration of the EU equality bodies, from a first phase
where they had a very limited scope of action to a second phase where there is an
expansion of their scope of application, their functions and their powers.
First phase: Reduced scope of action and few competences
EU equality bodies were created by article 13.1 of the Directive 2000/43/EC of 29 June
2000 implementing the principle of equal treatment between persons irrespective of racial
or ethnic origin (Directive 2000/43/EC) which establishes that each Member State shall
designate one or more bodies responsible for the promotion of the equal treatment of all
people without discrimination on the basis of ethnic origin. In the same way,
Capell`
a Ricart195
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