AI Automation and Hiring Discrimination: Spain’s Attempt to Resolve the Issue through the Carta Derechos Digitales, or Digital Rights Charter by Michael Cavaliere

I. Introduction

            Without a doubt, artificial intelligence (“AI”) is the future of the workplace. AI has increased productivity and efficiency in nearly every industry.[1] Numerous companies have turned to AI in order to improve their hiring process, which has also been referred to as “AI automation”.[2] Recruiters no longer need to spend countless hours sorting through resumes, calling applicants, and scheduling interviews, as AI is able to instantaneously screen and select applicants that best fit a company’s needs.[3] The use of AI automation in hiring has become even more widely adopted due to the COVID-19 pandemic and employers’ need to rely on virtual job applications and interviews.[4] Employers have never been more reliant on AI technology in the hiring process than they are today.

II. AI Automation and the Impact on Human Rights

            However, with this technological revolution comes many questions and potential issues. AI automation may produce, among other things, gender and racial bias in the delivery of online job postings.[5] Biased data, variables, and decisions of employers are often emulated into the programing of their AI hiring systems, rather than eliminated.[6] A recent report published by the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) provides the example, “if a company uses an AI hiring algorithm trained on historic data sets that favour male, white, middle-aged men, the resulting algorithm will disfavour women, people of colour and younger or older people who would have been equally qualified to fill the vacancy.”[7] While many employers may argue for the benefits of AI automation, especially during a pandemic, the risks of bias and discrimination to potential employees is something that cannot be ignored.

Besides the ethical reasons for preventing these immoral hiring practices, instances of AI automation may prove to be illegal in numerous countries around the globe. In the United States, for example, AI automation can implicate the Title VII of the Civil Rights Act of 1964 (“Title VII”), a federal law that protects employees and applicants against discrimination based on certain specified characteristics such as race, color, national origin, sex, and religion, as well as the Age Discrimination in Employment Act (“ADEA”).[8] Further, the use of AI automation could implicate the Americans with Disabilities Act (“ADA”) if an algorithm discerns an applicant’s physical disability, mental health, or clinical diagnosis, all of which are forbidden inquiries in pre-employment candidate assessments.[9]

III. Spain’s Potential Solution through the Carta Derechos Digitales

            While there is no clear solution to prevent the improper use of AI automation, Spain is one country that has led the way in recognizing this problem and providing a proposal to protect individuals from employer bias and discrimination. On July 14, 2021, Spanish President Pedro Sánchez announced the publication and adoption of the Carta Derechos Digitales, or the Digital Rights Charter (“Charter”).[10] The Charter outlines six fundamental rights for the digital world: (1) the right of freedom; (2) the right of equality; (3) the right of participation and shaping the public space; (4) the right of the working and business environment; (5) digital rights in specific environments: and (6) rights of guarantees and efficiencies.[11] The aim of the Charter is to protect the rights of citizens in this new era of AI where these rights present current and extremely serious vulnerabilities.[12] Beginning on June 15, 2020, the drafting process included, not only, the advice and proposals of a group of digital rights experts but also public citizen’s contribution through an open participatory process.[13] While the Charter is not regulatory in nature, it proposes a framework of reference that can be used by the public in navigating and taking advantage of the new digital world.[14] The “pioneering nature” of this Charter relates to rights related to AI, algorithmic non-discrimination, and for an individual to request human oversight or intervention.[15] These rights are broadly applicable to many areas within the digital environment, yet the rights from an employment law perspective stand out.[16] Specifically, the development and use of AI algorithms in the workplace require a data protection impact assessment.[17] This assessment would need to analyze the risks related to the ethical principles and rights related to AI automation hiring, such as the gender perspective and the prohibition of direct and indirect racial discrimination.[18] The Charter provides clear guidance of how employers can steer clear of impermissible hiring practice while using AI automation.

Following the lead of Spain, countries and unions around the world now acknowledge the problem of AI automation and are working towards possible solutions. In April 2021, the European Commission proposed a regulatory framework on AI as a part of wider overall individual protection package.[19] The proposed regulation identifies certain AI systems and technologies by their level of “risk” and subjects them to certain obligations before being introduced to the public.[20] Employment, workers management, and access to self-employment are considered “high-risk,” and the proposed regulation even provides the example of “CV-sorting software for recruitment procedures”.[21] Being a “high-risk” AI system, these recruitment procedures will be subjected to strict obligations, such as risk assessment, high quality datasets feeding the system to minimize discriminatory outcomes, and appropriate human oversight.[22] These obligations flow almost directly from the Charter that was proposed nearly a year earlier, and there is reason to believe European Commission may have looked to Spain for guidance.

The United States is also following Spain’s lead, by ensuring AI automation will not be improperly used in any employment setting. In September 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it would be monitoring employers’ use of AI in the workplace to ensure compliance with anti-discrimination laws.[23] The EEOC recognizes the potential of AI automation introducing unlawful bias in candidate sourcing, resume screening, and video interview analysis.[24] While the EEOC has expressed its awareness of these issues, it has not yet issued written guidance on the use of AI automation in employment decisions. The EEOC has even acknowledged that the most relevant document, the 1978 Uniform Guidelines on Employee Selection Procedures, is more than 40 years old.[25] Clearly, the U.S. is in need of updated procedures and formal written guidance in the wake of AI automation.

IV. Conclusion

The possibility of employee bias and discrimination in AI automation is widespread and may only be prevented if action is taken and employers are put on notice. As AI automation and other technologies become more advanced, individuals will need to rely on charters, such as the Carta Derechos Digitales, to guarantee their rights are protected.

[1] Key Ways Artificial Intelligence Can Improve Recruiting In The Hiring Process, Forbes (Aug. 27, 2021, 01:15pm EDT),

[2] Id.

[3] Id.

[4] AI in Hiring, BSR, (last visited Oct. 9, 2021).

[5] Id.

[6] Jenny R. Yang, Three Ways AI can Discriminate in Hiring and Three Ways Forward, Urban Wire (Feb. 12, 2020),

[7] The Right to Privacy in the Digital Age: Report (2021), Off. of the U.N. High Comm’r for Hum. Rts. (Sept. 15, 2021),

[8] Gary D. Friedman & Thomas McCarthy, Employment Law Red Flags in the Use of Artificial Intelligence in Hiring, ABA (Oct. 1, 2020), 

[9] Id.

[10] Joshua Nelson, Spain President Proposes Digital Rights Charter, Outlining Fundamental Rights of Individuals Online, JURIST (July 24, 2021 02:31:01 PM),

[11] Id.

[12] Sánchez presents the Digital Rights Charter with which “Spain is at the international forefront in protecting citizens’ rights”, La Moncloa (July 14, 2021),

[13] The Government Starts the Process of Preparing a Digital Rights Charter with the Constitution of a Group of Experts, The Spain J. (June 16, 2020),

[14] La Moncloa, supra note 12. 

[15] Deirde Tynan, New Digital Rights Charter to Guarantee Citizens’ Rights, EuroWeekly (July 18, 2021),

[16] Carlos Gonzalez, Spain: New Act on Digital Rights (“Carta de Derechos Digitales”), DLA Piper (July 22, 2021),

[17] Id.

[18] Id.

[19] Regulatory framework proposal on Artificial Intelligence, European Comm’n, (last updated Aug. 31, 2021).

[20] Id.

[21] Id.

[22] Id.

[23] Daniel J. Butler & Kevin J. White, Employers Beware: The EEOC is Monitoring Use of Artificial Intelligence, Hunton Employment & Labor Perspectives (Sept. 21, 2021), 

[24] Id.

[25] Id.

Standardization of Evidence Retrieval from of Mass Grave Sites by Douglas Brady

I. Introduction

Whether discovered in the aftermath of a regime change or when a party takes control over territory during a conflict, mass graves are the culmination of immeasurable harm and human suffering, indicating possible war crimes or crimes against humanity.[1] In 2018, after the Islamic State was driven out of its de facto capital city of Raqqa, Syrian workers found at least nine mass graves in and around the city.[2] As recently as July 2021, the Governor of Turkey’s bordering province announced that officials discovered a mass grave in the nearby Syrian province of Afrin, alleging that YPG Kurdish forces were responsible—although Agence France-Presse, who broke the story, was unable to verify the claims.[3]

The preservation of documentary evidence from mass graves allows for its use during criminal prosecution and brings closure to victims’ families and communities.[4] Currently, there is not a uniform international standard for protecting and investigating mass graves.[5] Although witness testimony is important for the International Criminal Court’s (“ICC”) criminal prosecution stemming from mass graves, documentary evidence can corroborate witness testimony and provide further independent proof of wrongdoing.[6] Additionally, preserving evidence from mass graves helps to identify victims and to provide answers to families.

II. Rome Statute and the Bournemouth Protocol

In July 2002, the Rome Statute established the ICC, which has jurisdiction over the crime of genocide, crimes against humanity, and war crimes.[7] The ICC has jurisdiction only over states which are a Party to the Statute and provides for the prosecution of individual persons who commit, order, aid, or otherwise contribute to the commission of these crimes—regardless of their official capacity.[8] In trials, the ICC presumes innocence, and the burden of proof rests with the prosecutor who must establish guilt beyond a reasonable doubt to convict.[9]

In regard to documentary evidence collected by a State, the ICC will not apply the State’s national law, but will instead follow the Rome Statute and the ICC’s Rules of Procedure and Evidence.[10] Under these Rules, the Pre-Trial Chamber has to authorize the prosecutor to investigate and may take such measures as may be necessary to ensure the efficiency and integrity of the proceedings regarding, among other things, examining, collecting, or testing evidence, “which may not be available subsequently for the purposes of a trial.”[11] However, documenting and ensuring the integrity of mass grave evidence may need to occur before an ICC investigation—ideally upon any mass grave’s discovery.

Recently, Melanie Kinkner and Ellie Smith, professors at Bournemouth University specializing in international law and human rights, created the Bournemouth Protocol on Mass Grave Protection and Investigation (“Protocol”)as a set of common standards and a chronology for the entire process across various disciplines.[12] The Protocol defines mass grave (previously undefined in international law) and provides the international legal basis for their proposals.[13] The authors acknowledge that mass graves are context-specific and accompany many challenges because “mass graves typically occur within highly-charged political and/or cultural context, which may still be ongoing at the time of investigation.”[14] Nevertheless, the Protocol highlights the value of uniform standards for mass grave investigation to create evidential links to perpetrators. The Protocol also warns that judicial investigation and prosecution should not take priority over the totality of mass grave investigation and protection efforts.[15]

III. International, Impartial and Independent Mechanism (“IIIM”) in Syria

In late 2016, the United Nations General Assembly established the first International, Impartial, and Independent Mechanism (“Syrian Mechanism”) to facilitate and expedite in the investigation and prosecution of genocide, crimes against humanity, and war crimes in the Syrian Civil War by collecting, consolidating, preserving and analyzing evidence.[16] However, the Syrian Mechanism complements local NGOs and the Independent International Commission of Inquiry on the Syrian Arab Republic, all of whom are primary sources of evidence gathering.[17] The Syrian regime does not allow the Syrian Mechanism to enter the country.[18] Thus, the Mechanism instead focuses primarily on digital documentation.[19] Short of doing the prosecuting itself, the Syrian Mechanism carries a prosecutorial standard for evidence gathering to service future tribunals.[20]

Ultimately, the evidence collected by an IIIM needs to be admissible in various courts for this new mechanism to prove effective.[21] For example, in the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, prosecutors introduced documentary evidence that helped lead to various convictions.[22] As of this writing, the Syrian Mechanism is still finalizing its Internal Procedures and Methods of Work, highlighting the need for universal standards for evidence collection, especially in event that mass graves are uncovered.[23] The Syrian Mechanism’s most recent report to the U.N. addressed the challenges brought on by the COVID-19 pandemic: “[b]ecause of the sensitivity of the matters at issue and the legitimate security concerns of many sources, not being to conduct in-person meetings and converse directly has had an impact on the pace of the Mechanism’s new engagements and cooperation discussion.”[24]

IV. Conclusion

The uniform use of the above-mentioned mechanisms could standardize the documentation of incidents, including atrocities such as mass graves, to push for accountability during the conflict instead of after a peace agreement.[25] In 2018, the U.N. Human Rights Council established the Independent Investigative Mechanism in Myanmar with a mandate much like that of the Syrian Mechanism.[26] This suggests that comparable mechanisms will be implemented during other current and future conflicts.

Still, challenges concerning evidence collection and protection of mass graves remain. Because these mechanisms often have limited access to the countries experiencing conflict and local resources may have limited capacity and resources, a uniform standard regarding mass graves could maximize the utility of these efforts to achieve future accountability and justice in the ICC or other courts.

[1] See Rome Statute of the International Criminal Court, Preamble, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

[2] Zeina Karam, Hundreds of Bodies Exhumed from Mass Grave in Syria’s Raqqa, Assoc. Press (Nov. 27, 2018), (“The Panorama mass grave . . . is one of the largest of nine mass graves discovered so far, and is believed to contain around 1,500 bodies.”).

[3] Turkey Says Mass Grave Found in Syria’s Afrin, Al Jazeera (July 15, 2021),

[4] Melanie Kinkner and Ellie Smith, The Bournemouth Protocol on Mass Grave Protection and Investigation, Int’l Comm’n on Missing Pers. 3 (Dec. 9, 2020), [hereinafter Bournemouth Protocol]; see also Melanie Kinkner and Ellie Smith, Universal Standards for Investigation of Mass Graves, EJIL:Talk! (Apr. 1, 2021),

[5] Id.

[6] Alexa Koenig et al., Access Denied? The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 7 (2018).

[7] Rome Statue, supra note 1, at art. 5.

[8] Id. at arts. 12, 13, 15, 25, 27 (explaining that the ICC acts when referred by a state party, the Security Council, or when the Prosecutor seeks approval from the Pre-Trial Chamber).

[9] Id. at art. 66.

[10] Id. at art. 69; see generally Rules of Procedure and Evidence, Int’l Crim. Ct. (2013),

[11] Id at art. 56.

[12] Bournemouth Protocol, supra note 3, at 3.

[13] Id. at 4–5.

[14] Id. at 7.

[15] See id. at 16.

[16] G.A. Res. 72/48, ¶ 4 (Dec. 21, 2016).

[17] See U.N. Secretary-General, Implementation of the Resolution Establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic Since March 2011, ¶ 30, U.N. Doc. A/71/755 (Jan. 19, 2017).

[18] Rebecca J. Hamilton, Social Media Platforms in International Criminal Investigations, 52 Case W. Res. J. Int’l L. 213, 217 (2020) (internal citation omitted).

[19] Id.

[20] Ayana A. Bowman, Reframing Sexual and Gender-based Violence: Proposed Practices for an International Criminal Tribunal in Syria,34 Temp. Int’l & Comp. L.J. 161, 165 (2019) (citing Alex Whiting, An Investigation Mechanism for Syria: The General Assembly Steps into the Breach, 15 J. Int’l Crim. Just. 231, 231-32 (2017)).

[21] Natalia Krapiva, The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence Be Admissible in European Courts?, 107 Cal. L. Rev. 1101, 1107, 1118 (2019). Other U.N. investigative teams utilize “the highest possible standards[] to ensure the broadest possible use” consistent with UN policies and best practice. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL, Collect, Store, and Preserve Evidence to the Highest Possible Standards,

[22] See Alexa Koenig et al., supra note 6, at 8.

[23] Methods of Work, Int’l, Impartial and Indep. Mechanism, (last visited Oct. 9, 2021).

[24] U.N. Secretary-General, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, ¶ 27, U.N. Doc. A/75/743 (Feb. 12, 2021).

[25] Jessica Doumit, Accountability in A Time of War: Universal Jurisdiction and the Strive for Justice in Syria, 52 Geo. J. Int’l L. 263, 283 (2020).

[26] Human Rights Council Res 38/2, U.N. Doc. A/HRC/RES/39/2, at ¶ 22 (Oct. 3, 2018).

Potential Impact of U.S. State and Local Employee Protection of Foreign Au Pairs by Matthew Finegan

I. The Department of State’s Proposed Rule Amending the Exchange Visitor Program

The U.S. Department of State (“State Department”) has recently proposed to amend existing Exchange Visitor Program (“Program”) regulations governing foreign au pairs.[1] If promulgated, this federal regulation would effectively preempt state and local labor protections, forcing foreign au pairs to rely solely on the Program’s guidelines for worker protections.[2] The State Department announced that these proposed amendments serve to “affirm its longstanding view that … state and local laws that are inconsistent with [federal au pair regulations] … pose an obstacle to the achievement of the objectives of the program.”[3] Indeed, this longstanding view was first proposed by the Trump administration, who first began working on a rule that would subject foreign au pairs to uniform conditions regardless of any state laws.[4] Although the Biden and Trump administration have shared a litany of different foreign policy objectives in the past, it is clear that the Biden administration plans to effectively carry-out the Trump administration’s unfinished plans for the Program by effectively shielding foreign au pairs from state and local labor protections.[5]

II. The Au Pair Process in General

Colloquially, an “au pair” is a foreign visitor who travels to the United States to acquire a better understanding of American life and culture, while living with and caring for young American families and children.[6] Currently, au pairs are able to become “live-in childcare workers” by being recruited by an approved “sponsor company” and obtaining a J-1 exchange visitor visa.[7] A J-1 exchange visa is a “nonimmigrant visa” for “individuals approved to participate in exchange visitor programs in the United States.”[8] Upon issuance of J-1 exchange visitor visa by the U.S. Bureau of Consular Affairs, the au pair is then “matched” with an American family through a sponsored company.[9] After paying an agency fee, the American family has the right to employ au pairs and pay them directly for their services.[10] Au pairs are generally required to work and live with their families for a duration of twelve months, with the possibility to extend their employment for up to two years.[11]

III. Federal and State Minimum Wage Requirements Relating to Au Pairs

Although the Fair Labor Standards Act (“FLSA”) requires minimum wage of $7.25 per hour for working persons on the federal level, regulations implemented by the State Department only require families to pay their au pairs $4.35 per hour.[12] This deviation represents the cost of room and board, which is deducted from their federal minimum wage.[13] On top of deductions, the Program only allows au pairs to work up to 45 hours per week; this effectively caps an au pair’s weekly salary at $195.75 with no opportunity for overtime pay.[14] Moreover, many states also have minimum wage laws, which yield higher minimum wage requirements and more worker protections.[15] For example, in New York City, the minimum wage requirement to be paid by “large” and “small” employers is $15.00 per hour.[16] Therefore, an au pair living with and working for an American family domiciled in New York City could theoretically be paid $15.00 per hour, minus deductions for room and board.[17]

However, the Biden administration’s proposed amendment to the Program will inevitably foreclose any opportunity or legal argument for such an entitlement, as the regulations promulgated through the State Department would reign supreme. This proposal comes at an especially distressing time because many labor advocates believed there would be a larger shift towards enhancing current labor protections. Certain states, such as Massachusetts, had begun enacting legislation specifically allowing au pairs to earn minimum wage while working and living within their jurisdiction.[18]

IV. Labor Advocates v. Approved Sponsor Companies

The Biden administration’s position has the full support of the Washington-based Alliance for International Exchange (“WAIE”) which represents all 12 au pair sponsor companies.[19] Ilir Zherka, executive director of WAIE, noted that the Program is a “public diplomacy tool”[20] which gives credence to the idea that the au pair program is simply a “cultural exchange program” rather than a “domestic worker program.”[21] Furthermore, Zherka cited a WAIE-commissioned survey which concluded that just eleven percent of former au pairs were unsatisfied with the Program, implying that the State Department’s oversight and regulations of the Program are adequate to protect their individual and employment interests.[22]

Not convinced about the State Department’s ability to fully protect au pairs are labor advocates and lawyers, such as David Seligman.[23] He stated that the rule is “a really dangerous threat to states and cities that have, over the past several decades, made great, important strides to protect workers.”[24] Adversaries to the proposed rule, including Seligman, call into question not only the obvious foreclosure of state and local protections, but the State Department’s apprehension to delegate the responsibilities of implementing the Program to the U.S. Labor Department, which is arguably a more appropriate and knowledgeable entity on workers’ rights.[25] Au pair advocates have also implied that the State Department’s argument that the educational component, being the ‘essential mechanism’ of the Program, is merely pretextual because the educational component is “minimal” and should not be used to justify employer families from paying the prevailing wage in their cities.[26]

V. Practical Considerations and Concerns

Unfortunately, lost in this battle of regulatory authority is the disparate impact this proposed amendment would have on the young and mostly female workforce.[27] Coupled with the practical and administrative concerns regarding the State Department’s ability to provide adequate oversight of the Program, there has been a long, appalling history of rampant exploitation.[28] Many foreign au pairs have alleged being subjected to threats of deportation and, more heinously, been subjected to physical, sexual, and financial abuse.[29] Although lobbying efforts and public policy considerations ultimately prevail in the political spectrum, it is important to keep in mind that these childcare workers, without adequate protections, are fully reliant on the families they live with and are constrained to their visitor visas for work.[30]

Currently, the proposed amendment has yet to reach the White House’s regulatory review office, meaning it is at least months away from implementation.[31] Regardless, if this proposed rule becomes effective, au pairs will have to solely rely on the U.S. government for further worker protections in the future.

[1] U.S. Dep’t of State, Bureau of Consular Affairs, Exchange Visitor Program – Au Pair Federal Regulation Preemption of State and Local Law, Off. of Info. and Regul. Affs. (July 2020),

[2] Id.

[3] Id. (explaining that from U.S. government’s perspective, the Program is primarily founded on the cultural and educational experience, rather than the employment component).

[4] Blake Harper, Biden’s State Department Will Strip Au Pairs of Labor Rights, Fatherly (July 16, 2021, 1:17 PM),

[5] Andrew Harris et al., State Department’s Federal Au Pair Oversight Plan Draws Critics, Bloomberg Law (July 16, 2021, 5:41 AM),

[6] Au Pair Program 101, Au Pair Int’l (last visited Sep. 7, 2021),

[7] Harris et al., supra note 5.

[8] Overview of Exchange Visitor Visa Program, U.S. Dep’t of State, (last visited Oct. 9, 2021).

[9] Id.

[10] Allyson Downey, Here’s The Plan – How Much an Au Pair Costs, (last visited Oct. 9, 2021).

[11] Frequently Asked Questions, Au Pair Int’l, (last visited Oct. 9, 2021). Au Pair International is one of the 12 approved agencies that help govern and place au pairs with participating American families. Regarding the blog post, this agency is used as a general example as some agency procedures and protocols may vary.

[12] Overview of Federal Minimum Wage Requirements, U.S. Dep’t of Labor, (last visited Oct. 9, 2021); see 22 C.F.R. § 62.31(j)(1) (2008).

[13] Harris et al., supra note 5.

[14] See 22 C.F.R. §62.31(c)(2) (2008).

[15] U.S. Dep’t of Labor, supra note 12.

[16] N.Y. Lab. Law § 652 (Consol. 2017).

[17] See New York Exempt Employees: What you need to know, BLR, (last visited Oct. 9, 2021).

[18] Harper, supra note 4.

[19] Harris et al., supra note 5.

[20] Id. (explaining that the phrase “public diplomacy tool” has underlying significance because 22 U.S.C. §§ 2561(a)(4) & (b)(3) conjunctively authorize the State Department to promulgate rules and regulations for the implementation of United States public diplomacy polices, which includes cultural exchange programs).

[21] Id.

[22] See id.

[23] Id.

[24] Id.

[25] Id.

[26] Harris et al., supra note 5.

[27] Id.

[28] Harper, supra note 4; Harris et al., supra note 5.

[29] Harper, supra note 4.

[30] Id.

[31] Harper, supra note 4; Harris et al., supra note 5.