The Before and after discrimination

Between the Analog Mode of Structural Discrimination and the Automated Mode of Algorithmic Discrimination and the Duty of Protecting Rights through Constitutional Jurisdiction

Abstract

Through bibliographic review and critical analysis using the deductive method, this article investigates the issue of structural discrimination and its reproduction in the digital era, in the form of algorithmic discrimination. It first examines the phenomenon of analog structural discrimination, characterized by the unconscious and institutionalized perpetuation of historical and cultural inequalities, particularly affecting vulnerable groups. Subsequently, it analyzes how these discriminatory dynamics are transformed through technology and algorithms, which, despite being designed to be neutral, frequently replicate and intensify structural biases, exacerbating social exclusion and injustice. The study identifies four main types of algorithmic discrimination, emphasizing particularly the role of algorithmic opacity as a challenge to the protection of fundamental rights. Finally, the article addresses the need for differentiated and proactive judicial protection in response to these new forms of discrimination, emphasizing the importance of algorithmic transparency and explainability as essential tools to safeguard fundamental rights in contemporary society.