South Africa: Can Algorithm Bias Result In Employment Discrimination?

Last Updated: 12 April 2018
Article by Claire Jamie-Lee Nolan

Most Read Contributor in South Africa, October 2018

A modern, technologically driven society generates large amounts of information about members of that society. Think, for example, of the information regarding statuses and activities that banks, credit card providers, medical aid schemes, cell phone networks and employers have in their possession. Think further of the information that Google, Facebook, Uber and Amazon have in their possession.

Most, if not all, of this information is digitally stored and can potentially be easily "mined" to derive information that other parties may find useful – for example, a credit provider, insurer or employer. While this new digital age of technology promotes efficiency and heightened productivity, it is not without risk.

In contemplation of what risks we could face in the age of technology, a long debated phenomenon is the algorithm. Algorithms are, in essence, computer programmes created to enable their users to process "big data" in a fast and efficient manner and to provide relevant information that can be derived from this data. This information can then be used to take decisions that affect individuals, for example, to be granted admission to study for a particular degree, to be granted credit, or to be employed or promoted.

Big data and the algorithms utilised to analyse data are playing an increasingly important role in the generation of information for employers when they take employment-related decisions. These tools can be useful, but some argue that they can have negative outcomes. Although an algorithm is, on the face of it, an objective computer process, it may reflect human bias and historical injustice. Opponents argue that an algorithm can reflect the bias of the human that creates it. Consequently, discrimination and bias may be reflected in the results that an algorithm produces and this may reinforce human prejudice.

Cathy O' Neil, the author of Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy, is a firm believer that algorithms are "opinions embedded in mathematics". She believes that algorithms can reinforce discrimination and widen inequality. O'Neil emphasises that these algorithms are not subjected to enough scepticism – many believe that they are both objective and trustworthy. These automated decisions, based on an opaque algorithms, may be subjected to very little human oversight. Humans make decisions based on information provided by an algorithm without questioning the validity of this information.

To demonstrate, consider how a human resources department in large corporations may employ an algorithm to "weed" through thousands of job applications in order to minimise the pool of applicants to those who are the most suitable for the position available. While these hiring algorithms may be effective in lowering the numbers of applications, one would have to consider the results that are produced may have eliminated candidates with high potential due to programmed criteria that may be inherently biased. Hiring algorithms are, in fact, designed to use historical data to make predictions about what qualities and criteria are associated with strong job performance. Thus, these algorithms may, in reality, discount the true potential of a various candidates and produce results that are quantitative and not necessarily fair.

O'Neil cites the example of an algorithm utilised by an American company that was initially designed to take into account the area potential job applicants lived in on the assumption that employees who lived closer to their place of work would be more likely to remain in employment with it. The result was that candidates who lived "too far" from work could be excluded from consideration by the algorithm. This would have had the effect of excluding lower income communities who lived further away from the workplace from consideration and by excluding this class of people indirectly implemented bias based on class. This would have resulted in candidates with potential being excluded based on a criterion that did not accurately reflect their qualifications or abilities to do the work required. In this case, the algorithm was altered to prevent this from occurring. But another user may not have considered this possibility. The implications of such a criterion become even starker in a society where employees live in racially segregated suburbs.

Another example cited is an algorithm used in the recruitment process by an English company that had been programmed to utilise the recruitment criteria that the company had utilised in the past. The application of these criteria had, in the past, resulted in the rejection of candidates whose proficiency in English was poor, often foreigners. This resulted in the algorithm "learning" that "English" names were generally associated with acceptable qualifications while "foreign" names were not. The programme therefore reinforced racial and perhaps other forms of discrimination.

The above examples deal with decisions taken in the context of job appointments. There are also examples where algorithms were utilised to assess the performance of employees. They could also find application in decisions to promote.

It is important to note that the creators of the algorithms may not have any intention to create an algorithm that has the effect of discriminating against certain groups. An employer who purchases a product containing such an algorithm may also not be aware of such potential discrimination. But this will not prevent an allegation that the application of the algorithm constitutes unfair direct or indirect discrimination as prohibited by section 6 of the Employment Equity Act, 1998.

The debate about algorithm bias is predominantly American focused because of the greater use of this type of technology in that country and the existence of a large number of employers employing large workforces. But this is not to say that similar issues and problems may not also arise in South Africa in the future.

Equality is one of the corner stones of our society embedded in our Bill of Rights and other legislation. Inequality and discrimination is rooted in our history and still affects millions of people in South Africa. The potential risk of discrimination is one that employers ought to be aware of.

While the efficiency and productivity gains that may be associated with the use of algorithms in computer programmes in the employment context is a commendable goal, care should be taken to ensure that this is not at the expense of the right to equality. Employers considering the use of this type of programme should take steps to ensure that they meet the requirements of equality. It would also be advisable to monitor the impact of the use of these programmes on an ongoing basis. One could implement this oversight by regularly running audits to test the accuracy of results produced by the algorithm.

Claire Jamie-Lee Nolan is a candidate attorney in ENSafrica's employment department.

Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions