Does South Africa Offer Sufficient Safeguards To Address Algorithmic Discrimination In Recruitment? A Comparative Analysis

Abstract

The era of the Fourth Industrial Revolution has seen a surge in the proliferation of Artificial Intelligence in virtually all industries, impacting employment, agriculture, and health care. This contribution traces the evolution of AI from its inception by Alan Turing to the current age of deep learning and digitalisation. I examine AI's increasing role in the recruitment process, highlighting both its potential to enhance efficiency and its danger of exacerbating discrimination, both directly and through proxies. I highlight that despite the possibility of algorithmic bias, scholars argue that identifying and rectifying it is more legally manageable than conventional human bias. The essay, therefore, advocates for the fair regulation of AI hiring tools that mitigate discrimination for all persons while still allowing space for the growth of the field of AI. First, focusing on South Africa's legislative framework, the essay investigates whether current laws offer adequate protection for victims of recruitment algorithmic discrimination. In the scope of the discussion, I offer a critique of existing legal protections, concluding that currently promulgated frameworks are insufficient. To account for these legal inadequacies, the paper turns to consider solutions at the international level, namely the AI Act of the European Union. Considering the AI Act's provisions circumventing AI bias, which echo a risk-based approach, I make suggestions to be considered by the legislature when it inevitably is tasked with regulating AI and its potentially harmful technologies. Ultimately, the paper underscores the importance of addressing AI discrimination in the recruitment process through robust legislative regulation.