As we have previously reported (here, here and here), there are novel risks associated with employer use of AI tools in the workplace. While such tools have caught the attention of the EEOC and state and local legislatures, we have yet to see a proliferation of litigation in this area. However, that may soon be changing. On February 21, 2023, a class action lawsuit was filed against Workday, Inc. (“Workday”) in the United States District Court for the Northern District of California, alleging that the company engaged in illegal race, age, and disability discrimination by offering its customers applicant-screening tools that use biased AI algorithms.

The lead plaintiff, Derek Mobley, an African American male over 40 who suffers from anxiety and depression, applied for 80-100 jobs on Workday since 2018 and was denied employment from each one, despite holding a bachelor’s and associate’s degree. Mobley seeks to represent a class of all current or former applicants since June 3, 2019, that are African American, over the age of 40, or disabled and that have not been “referred and/or permanently hired” as a result of Workday’s alleged discriminatory AI practices.

According to the complaint, Workday provides screening tools to its customers, which allows them to use “discriminatory and subjective judgments” when evaluating applicants, and even allows for “preselection” of applicants not within certain protected categories. Mobley alleges that the administration and dissemination of this screening tool constituted a “pattern or practice” of discrimination and that this conduct amounted to intentional and disparate impact discrimination.

The putative class seeks a declaratory judgment that the practices are unlawful, a preliminary and permanent injunction against Workday from engaging in the allegedly discriminatory policies and practices, and an order that Workday implement “policies, practices, and programs” that allow all minorities access to equal employment opportunities. The class also seeks monetary damages, including back pay, front pay, compensatory damages, punitive damages, and attorneys’ fees.

Takeaway

This case is groundbreaking as it is one of the first to allege discrimination based on an employer’s use of AI tools in hiring. With the increasing use of AI in the employment sector, employers must be aware of the legal implications of using such tools. The EEOC and other governmental agencies are paying close attention to the potential for discrimination, as reported here. It is imperative that employers stay updated on the developing law in this area. We will keep you updated as this case progresses.

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Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.