The intersection of artificial intelligence and employment poses new challenges for pregnant workers
In June 2023, the Pregnant Workers Fairness Act (PWFA) came into effect, providing pregnant employees with reasonable accommodations in the workplace. While this legislation marked a significant step forward, pregnancy discrimination remains a persistent issue in today’s society. The rise of artificial intelligence (AI) and algorithms in employment decisions presents new challenges, as these technologies have the potential to perpetuate discrimination against pregnant workers. This article explores the intersection of AI and pregnancy discrimination, highlighting the risks and implications for pregnant individuals in the workforce.
The Growing Role of AI in Employment Decisions
Employers are increasingly relying on AI and automated tools in their hiring processes, with approximately 83% of employers utilizing these technologies. While AI has the potential to streamline recruitment, it also raises concerns about discriminatory practices. Algorithms used in hiring may inadvertently discriminate against pregnant individuals, even without explicit programming to identify pregnancy. For example, an algorithm could classify employees who take sick days for pregnancy-related symptoms as “bad” employees, leading to their exclusion from consideration. The Equal Employment Opportunity Commission (EEOC) has issued guidance to warn employers about the potential liability associated with discriminatory AI practices.
Proxy Discrimination and the Challenges of Detection
Identifying and addressing discriminatory practices by AI is a complex task, particularly due to the concept of proxy discrimination. If an employer becomes aware that their AI program is screening out pregnant individuals, they may instruct the algorithm to exclude pregnancy as a factor. However, this does not solve the problem entirely, as the AI may find alternative proxies to predict pregnancy status. Factors such as recent gaps in employment or changes in shopping habits could inadvertently become indicators of pregnancy, leading to continued discrimination. The breadth of available data makes it challenging to detect and prevent proxy discrimination effectively.
The Vulnerability of Reproductive Health Data
The vast amount of reproductive health data available poses a significant risk for proxy pregnancy discrimination. Currently, U.S. privacy laws do not adequately protect this data, creating an environment where employers can access and utilize sensitive information without legal restrictions. Employers’ hiring algorithms could potentially use various data points, such as social media profiles or shopping habits, as proxies for pregnancy. The lack of privacy laws exacerbates the likelihood of proxy discrimination and further jeopardizes the reproductive autonomy of individuals.
Pregnancy Discrimination in the Context of Reproductive Rights
The threat of pregnancy discrimination takes on added significance in a landscape where reproductive rights are under attack. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which restricted the constitutional right to an abortion, has paved the way for increased restrictions on reproductive autonomy. In this context, it is crucial to consider how society treats those who do become pregnant. Justice Alito’s opinion in Dobbs, linking changes in pregnancy discrimination laws to support for abortion restrictions, fails to acknowledge the ongoing realities of pregnancy discrimination. The rise of AI and the erosion of reproductive health privacy only serve to compound the challenges faced by pregnant workers.
Conclusion:
As AI becomes more prevalent in employment decisions, the threat of pregnancy discrimination looms large. The potential for proxy discrimination, coupled with the lack of privacy protections for reproductive health data, creates a fertile ground for discriminatory practices. It is essential for policymakers, employers, and society as a whole to address these challenges and ensure that pregnant workers are protected from discrimination in the era of AI. Safeguarding reproductive rights and promoting workplace equality are crucial steps towards creating a more inclusive and just society.
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