Businesses increasingly use artificial intelligence (AI) to automate their decision-making processes. However, what happens when these businesses use AI to discriminate against customers and employees based on the business owner’s sincerely held religious beliefs? This article explores the potential implications if firms use AI to perform their growing religious free exercise rights and ponders whether that is an acceptable future reality.
Artificial Intelligence in Business
AI technology typically includes the exercise of building machines capable of executing tasks usually performed by humans. Before AI, a human business representative usually decided whom to hire, serve, or lend. Now, companies use AI to automate business decisions by having AI technology assist in deciding whom to hire, serve, and lend. These AI-enhanced business decisions predict if a customer or job applicant is the type of person the business wants to serve.
Other actions typically performed by humans in business are intentional discrimination, prejudice, and bias. Historically, such actions are easily considered illegal, and thus an AI product that mimics this behavior is likely regarded as unlawful too. While there has been much focus on the dangers of illegal, accidental bias in AI, what happens when companies design this technology to discriminate…legally? This question stems from the growing foundation of intentional legal discrimination based on a business owner’s sincerely held religious belief.
First Amendment Developments
Recent developments in the First Amendment to the US Constitution have increased the religious free-exercise rights of closely held businesses. The First Amendment protects an individual’s right to be free from laws that establish a religion, and free from laws that prohibit the free exercise of religion. The Court has given businesses, through the belief system of their owners, the same First Amendment rights. Relevant here is the freedom from laws that prohibit the free exercise of religion. If a religious person owns a business, the company can opt out of any law restricting the business owner’s ability to exercise their faith. The laws receiving the most recent focus prohibit discrimination against LGBTQ individuals. Anti-discrimination rules apply to all businesses. However, suppose the owner is religious and sincerely believes discrimination against LGBTQ individuals is at the core of practicing their faith. In that case, the Court is primed to allow the business owner to discriminate.
Legal discrimination can take the form of denial of service and benefits. These recent developments in First Amendment law allow room for excused discrimination of marginalized communities if a business owner can base that discrimination on their religion, potentially reversing the progress made to allow LGBTQ individuals the right to live in the US with equality and dignity. Now, looking for an employer, restaurant, or service provider could require individuals to check the religious beliefs of that store owner first before entering. Or business owners will post notice of their beliefs conveniently and place their “No Gays, No Irish Catholics, No Jews” sign on their storefronts.
Legal Artificial Discrimination
But what happens when the business owner operates online and decides to skip the notice and automate their belief system into their business? Imagine an America where a religious business owner intentionally designs an algorithm to assess a potential customer’s identity at checkout and allows the AI machine to deny that customer service systematically. Or if the religious business owner automates its allocation of benefits based on religiously acceptable uses. Did the Supreme Court Justices imagine such legal discriminatory decision-making performed by a machine? Doubtful. Notably, AI was not mentioned in oral argument. Most hypotheticals were related to a human being’s belief system. But since this is 2023, human beings are not the only ones making business decisions. Artificial Intelligence is assisting businesses in deciding who to serve, hire, lend, and pay.
Take Away
The thought of being systematically removed from consideration of patronage or employment left a sour taste in my mouth about this country. What also concerned me is that the Justices did not even consider the growing business decision-makers, AI, when rendering their decision. The opinion and oral arguments centered around a sincere religious business owner informing a customer they will not be served. Their hypotheticals and sense of empathy ignore that many transactions happen online without a sincere religious business owner present. Our digital business environment allows for phantom and legally automated discriminatory decisions made before and without the consumer’s knowledge. While this issue has not been raised yet in the Courts, my sincerely held belief is that if a business owner is allowed to discriminate against the LGBTQ community, they should be required to say it to our face.