In the latest lawsuit of its kind, the American Civil Liberties Union recently filed a complaint with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission (“EEOC”) alleging an AI interviewing tool discriminated against a deaf and Indigenous employee at Intuit seeking a promotion. 

According to the complaint, when the employee applied for a promotion, Intuit used a HireVue video interviewing platform that scored each candidate on their performance.  The complaint alleges that some audible portions of HireVue’s platform lacked subtitles, and the employee’s request for human-generated captioning as an accommodation was denied.  The employee was rejected for the promotion, and allegedly received AI-generated feedback from HireVue recommending, among other things, that she “practice active listening.  The ACLU alleges this evidence shows the applicant’s hearing disability disadvantaged her in the process.  The complaint also alleges “upon information and belief” that the interviewing platform had a disparate impact based on race.

The ACLU’s complaint against Intuit is not the first lawsuit to allege that AI interviewing software ran afoul of statutes intended to protect employees or job applicants.  In 2023, an applicant for a job with CVS alleged the company’s use of a video interviewing platform that scored applicants on various competencies including “reliability, honesty, and integrity” violated a Massachusetts statute prohibiting employers from subjecting applicants to lie detector tests as a condition of employment. Baker v. CVS Health Corp., 717 F. Supp. 3d 188 (D. Mass. 2024). After the plaintiff survived a motion to dismiss, the parties reached an individual settlement.  In recent months, several other plaintiffs have filed lawsuits bringing similar claims under the Massachusetts statute.

As similar AI solutions gain traction among employers, it is possible that lawsuits such as these will continue to proliferate.  We will continue to monitor and report on these developments.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.

Photo of Jonathan Slowik Jonathan Slowik

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state…

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state and federal trial and appellate courts throughout California and beyond. In addition to his core wage and hour work, Jonathan has defended employers in single-plaintiff discrimination, harassment, and retaliation cases, and in labor arbitrations. Jonathan also regularly advises clients on a wide range of compliance issues and on employment issues arising in corporate transactions.

Jonathan has deep experience representing clients in the retail and hospitality industries, but has assisted all types of clients, including those in the health care, telecommunications, finance, media, entertainment, professional services, manufacturing, sports, nonprofit, and information technology industries.

Jonathan is a frequent contributor to Proskauer’s California Employment Law Blog and has written extensively about PAGA on various platforms. He has been published or quoted in Law360, the Daily Journal, the California Lawyer, the Northern California Record, and the UCLA Law Review.

Jonathan received his B.A. from the University of Southern California in 2007, magna cum laude, and J.D. from UCLA School of Law in 2012, where he was a managing editor of the UCLA Law Review.

Photo of Margo Richard Margo Richard

Margo R. Richard is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Margo attended Loyola University New Orleans College of Law, where she graduated Cum Laude with a Law, Technology, and Entrepreneurship Certificate. While in…

Margo R. Richard is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Margo attended Loyola University New Orleans College of Law, where she graduated Cum Laude with a Law, Technology, and Entrepreneurship Certificate. While in law school, Margo served as a teaching and research assistant to Professor Masai McDougall. She competed as a team member of the American Bar Association Moot Court Team, a coach of the Mardi Gras Invitational Moot Court Team, and was selected for membership into the Order of Barristers. Margo was also a member of the Loyola Law Review, Phi Delta Phi Legal Honor Society, and Black Law Students Association.