31 Mar MOBLEY V. WORKDAY, INC. SIGNALS USE OF ARTIFICIAL INTELLIGENCE SCREENING IN HIRING MIGHT OPEN NEW FRONTIER OF DISCRIMINATION LIABILITY

The use of an artificial intelligence (“AI”) screening service in hiring can be attractive to employers. They can lessen the hassle of sorting through candidates using algorithms and inputs to provide a conveniently narrowed list of potential hires. The problem? While they can discriminate based on permissible factors such as experience, licenses, or degrees, they might also disproportionately discriminate against protected individuals, potentially opening up the employers that use them to liability.

On February 21, 2023, Derek Mobley, a Black man over the age of 40 with a disability, filed a complaint against Workday, Inc. (“Workday”) in the US District Court for the Northern District of California, alleging race, age, and disability based discrimination. Workday is an employment agency that utilizes AI to select candidates, and out of the allegedly 80-100 applications Mr. Mobley filled out that were then screened through Workday, all were denied. As a result, Mr. Mobley is suing Workday for violations of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act.

If Mr. Mobley’s suit is successful, employers who use Workday or its equivalents may also open themselves up to potential liability. In May of 2022, the Equal Employment Opportunity Commission (“EEOC”) released guidance stating employers have a responsibility to ensure the AI screening they use does not discriminate based on disability, and it is likely that this responsibility will extend to race and age based disability as well.

Updates will be provided as the case develops.

If you have any questions regarding your current hiring and firing practices, you can contact SWB.