A sufficiently advanced algorithm could assemble a synthetic proxy for race from the other available data if race data are not already included.

If you know where someone has their hair cut and styled, and where they attend their religious services, if any, you can probably guess with good confidence how they would self-report their race.

If a company is found to be interacting with a legally protected group in a discriminatory manner, it really doesn't matter if it's doing so because of an algorithm running on a bureaucracy made of humans, or an algorithm running entirely in a machine.