The courts have spoken: examining judicial responses across the EU to algorithmic bias in automated decision-making through the lens of non-discrimination law

Abstract For as vivid the academic debate around issues of algorithmic bias, discrimination and unfairness has been in the context of EU law, little attention has been paid thus far to the way in which such instances have been dealt with by courts. This article examines from a non-discrimination law perspective how domestic courts of Member States as well as the European Court of Justice have approached cases of algorithmic bias in automated decision-making, by focusing on the judges’ engagement with discrimination-related considerations. For the purposes of my analysis, I propose a taxonomy of judgments dealing with cases of algorithmic bias and analyse a number of examples accordingly to showcase the distinct features of each category. In this regard, a first distinction is drawn between judgments relating to cases of ‘algorithmic discrimination’ and those concerning cases of ‘unfair algorithmic differentiation’. Depending on the extent to which courts take into account any risks of discrimination in the cases falling under the second category, I further distinguish between judgments of ‘discrimination reflection’, those of ‘discrimination awareness’, and those of ‘discrimination silence’. On the basis of this classification, I then attempt to shed more light on how non-discrimination and data protection law may interact with each other in practice in cases of algorithmic bias. Finally, the article concludes with some reflections on the prevailing tendency to address equality concerns through recourse to data protection rules.