The legal concept of discrimination by association: where does it fit into the digital era?

Abstract

Personal autonomy, a core human rights principle, refers to the ability to both design and conduct the course of one’s life through making choices from a range of valuable options. This plays a pivotal role in the realm of equality and non discrimination, which are relevant in the context of the European Union (EU). Through case law, the concept of discrimination by association has emerged as a crucial step in strengthening anti-discrimination, recognising that individuals who are not part of a protected group but who have a relationship with someone who is, or are in some way associated with them, may be treated unfavourably, thus requiring appropriate remedies. Currently, the field of non-discrimination increasingly warrants attention, due to the rapid advancement of technology, which harbours unique discriminatory potential. For instance, through data mining and the use of artificial intelligence tools for profiling and clustering, people may be grouped based on collective characteristics that may not accurately represent their individual features, resulting in differential treatment regardless of whether legally recognised vulnerable groups are involved. It therefore becomes crucial to question to what extent discrimination by association can effectively address this discriminatory power or whether new measures need to be developed to safeguard personal autonomy and prevent the proliferation of such phenomena in the current digital landscape.