Disadvantaging ‘Disadvantaging’ is not defined under the ADA, DDA or SDA. While this term is not expressly used in the RDA, the RDA also considers the disadvantageous impact of the requirement. The RDA refers to a requirement that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life (for simplicity, we will subsequently describe this as impairing their human rights).20 Ultimately, whether a requirement disadvantages a person with a protected attribute, or impairs their human rights, is a matter of evidence. The necessary evidence will depend on the individual circumstances. In academic research relating to AI-informed decision making, there are conflicting views about how disadvantage or, more generally, ‘fairness’ ought to be measured, and on the incompatibility between different forms of such measurement.21 While an insurer may have determined its AIinformed decisions are ‘fair’ according to its own metrics, there may be alternative opinions as to whether this is correct. Such an issue would also be a matter for evidence for the court, if an unlawful discrimination matter were litigated, when considering whether the requirement disadvantages, and also whether it is reasonable in the circumstances. ‘Unfairness’ is a broader concept than discrimination. While discrimination is unfair, acting unfairly does not necessarily constitute discrimination, and may not be in breach of the Discrimination Acts. However, it may give rise to other risks for insurers, such as reputational risks or loss of customers. While these are beyond the scope of this Guidance Resource, they are issues Which an insurer may wish to consider. Reasonable in the circumstances In determining whether the requirement is reasonable in the circumstances, all relevant circumstances must be taken into account.22 The SDA states that the following non-exhaustive list of factors should be taken into account when deciding whether a condition, requirement or practice is reasonable in the circumstances: (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice. The ADA, DDA and RDA do not include such express guidance. While the relevant factors will depend on the circumstances of each case, the following factors may be relevant to assessing whether the requirement is reasonable: • the nature and effect of the requirement23 • the financial burden on the alleged discriminator to accommodate the needs of the person alleging discrimination24 • the availability of alternative methods of achieving the alleged discriminator’s objectives without the requirement,25 however the existence of reasonable alternatives does not, by itself, mean a requirement is unreasonable26 Guidance Resource: Artificial intelligence and discrimination in insurance pricing and underwriting • 2022 • 13