Artificial Intelligence as a Less Discriminatory Alternative

This Article considers the role of the “less discriminatory alternative” (LDA) in disparate impact litigation under Title VII of the Civil Rights Act and related statutes. The question posed is: has assigning the burden of proof of identifying LDAs to plaintiffs resulted in the adoption of these alternatives? The answer is no. But well-meaning employers have been reluctant to adopt practices that might increase the presence of minority employees in the workplace because the anti-discrimination laws prohibit reverse discrimination. This Article discusses the legal constraints that impinge on employers who wish to unilaterally search for and adopt an LDA, and explains how artificial intelligence (predictive analytics, specifically) can prove helpful.

Artificial intelligence may improve the accuracy of employee selections and, by constraining the algorithm regarding its analysis of seed data but not selections themselves, can lawfully enhance the presence of minorities and women in the workplace.