Orange County Employment Lawyers Blog
The lawsuit comes as employers have asked the U.S. Equal Employment Opportunity Commission (EEOC) for clearer guidance in how they should be using this technology. The EEOC has said it wants to initiate stronger enforcement of federal antidiscrimination standards to prevent hiring bias perpetuated by AI systems.
The primary plaintiff in the case against Workday – representing others similarly situated – says he’s over 40, Black, and suffers from anxiety and depression. He has applied for upwards of 100 jobs through Workday’s system since 2018, when he earned a bachelor’s degree in finance and an associates degree in information technology. He’s been denied every single time.
Workday is a hiring screening tool that is used by thousands of employers nationally, according to the complaint. It purportedly allows for preselection of applicants outside of protected categories – with input from algorithms formulated with input from humans who, as we know, have both conscious and unconscious motivations for discrimination. This, plaintiffs say, has resulted in patterns of discriminatory practice. Furthermore, it’s alleged the software developer knew its systems were intentionally discriminating against protected class members in clear violation of the U.S. Age Discrimination in Employment Act (among other federal protections).
Plaintiff in Mobley v. Workday is seeking injunctive relief to reform the AI company’s screening products, policies, procedures, and practices to ensure that workers in state and federally protected classes will be able to compete fairly.
The company denies any wrongdoing, and insists its tools are fair and that the review process has been subject to extensive legal review to ensure compliance with state and federal employment regulations.
EEOC Has a Draft Strategic Enforcement Plan
The EEOC has a draft strategic enforcement plan that would allow its legal team four years to come up with concrete guidance on AI screening tools for employment. The strategic enforcement plan encompasses more than just AI, but the emphasis on this burgeoning tech was clear.
Prior to the deadline for public comment, worker advocates, employer trade groups, and civil rights teams are urging the EEOC to take a more concrete position. The starting point for AI compliance, they say, should be to first educate, then enforce.
It’s worth noting that AI tools are used by employers not just for screening new hires, but also for recruiting and employee evaluations. The Workday case isn’t the first time the tech companies that develop the tech of discriminatory programming. Recently, an English language tutoring services company was accused of using software that automatically rejects older applicants.
The EEOC’s goal should be to urge employers to consider the job relevance of using such tools, particularly when they may be disproportionately impacting protected groups who are no less able to do the work in question.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
Employers Seek Clarity on AI Bias Ahead of EEOC Enforcement Push, Feb. 23, 2023, By J. Edward Moreno, Bloomberg Business
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After-Acquired Evidence Can’t be Used as a Catch-All Defense in California Employment Lawsuit, May 3, 2023, Los Angeles Employment Lawyer Blog