Obstacles to Effective Algorithmic Discrimination Litigation: Towards a Vulnerability-Aware Framework

This article makes two main contributions. First, focusing on individuals contesting algorithmic discrimination through litigation, it examines potential obstacles on their path to remedies. It argues that, instead of framing them as ‘problems’ or ‘challenges’ of anti-discrimination law vis-à-vis algorithmic discrimination, conceptualising them as obstacles allows for more individual-focused considerations, acknowledging the multidimensional situation of vulnerability the victim may be in. Based on a critical analysis of relevant literature and various reports of documented cases, obstacles are categorised in a multi-level typology. This typology reveals how densely paved with obstacles the road to remedies can be for individuals in cases involving algorithmic discrimination. Second, the article argues that, when approached holistically, these obstacles force us to shift our perspective. This ‘conceptual dissonance’ – in light of the current legal framework and recent findings about the nature of algorithmic discrimination potentially affecting individual litigation – calls for a conceptual shift as well. It concludes that the breadth of these obstacles and the connected difficulty of overcoming them can be better understood by approaching them through the concept of vulnerability, thereby opening avenues for both analytical and normative purposes, and underscoring the need for further research in this area.