Mischon de Reya has published an article examining whether the focus on indirect discrimination risks in relation to artificial intelligence (AI) systems is too narrow, with more attention needed on the risk of direct discrimination. Direct discrimination refers to less favourable treatment because of an individual's protected characteristic, while indirect discrimination focuses on the negative effects of a neutral provision. So far, AI systems have been viewed as applying neutral provisions, but it is possible that the reason for a decision is based on an employee's protected characteristic, making it direct discrimination.
The article concludes that when investing in or using an AI system, it's important to consider the potential for direct discrimination in the system's decision making. To ensure that the AI system has been properly assessed for bias, creators and users should take appropriate steps such as conducting a governance, empirical or technical audit, and ensuring compliance with the EU Artificial Intelligence Act. Being aware of these potential issues can help ensure that the AI system operates fairly and without discrimination.
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