Judge Skeptical of Workday's Defense in Landmark AI Bias Lawsuit

It looks likely a landmark case accusing Workday of using artificial intelligence software that discriminated in the hiring process could move forward as a proposed class action lawsuit, with a federal judge challenging the Workday defense, Reuters reported.

The lawsuit could set important legal precedent in how AI can be used to automate hiring, a common new trend with companies that are increasingly using it to screen out job applicants.

Judge Raises Concerns About Employer Liability in AI Bias Case

At a recent hearing held in San Francisco, called because Workday had filed a motion to dismiss the lawsuit, U.S. District Judge Rita Lin didn’t make a ruling, but she had tough questions for Workday’s lawyer Erin Connell. 

She also said she was worried that protecting software vendors from Title VII (which prohibits employment discrimination based on race, color, religion, sex and national origin) could result in victims of discrimination having no way to make legal claims.

“What troubles me about Workday’s interpretation is the concept that the employer would not be liable for intentional discrimination unless they knew that the software was (biased),” Lin said. 

The legal system has broadly applied Title VII to eliminate discrimination, including holding employers accountable for third-party actions affecting job opportunities. 

Connell argued that Title VII does not extend liability to third-party businesses like software vendors that don’t control hiring. Plaintiff Derek Mobley's lawyer, Lee Winston, countered that Workday is seeking an exemption from Title VII that doesn't exist, noting the only exemption is for religious organizations. 

“The only exemption is for religious organizations, and AI is not a church that entitles [Workday] to an exemption,” Winston said.

Mobley's Class Action Accuses Workday of Algorithmic Discrimination

Mobley filed the class action lawsuit against Workday accusing the company of discrimination by algorithms, saying he - a Black man over 40 years old with mental health issues - had been passed up by the system for more than 100 jobs, as we reported earlier this year. The complaint asserts that the AI tools used by Workday, which are employed by many large companies for screening job applicants, could be perpetuating biases. 

This, Mobley argues, is in direct violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), among other statutes.

"Because there are no guardrails to regulate Workday’s conduct, the algorithmic decision-making tools it utilizes to screen out applicants provide a ready mechanism for discrimination."

In April, Mobley's case received a significant boost when the Equal Employment Opportunity Commission (EEOC) entered the fray. They filed an amicus brief arguing that Workday's software essentially performs the same functions as traditional employment agencies, albeit with a more sophisticated technological approach. 

Since these tools significantly influence which applicants get considered for jobs, the EEOC asserts that Workday can be held accountable under Title VII of the Civil Rights Act and other anti-discrimination laws.

EEOC Backs Mobley, Underscores AI Bias Concerns

The lawsuit against Workday is somewhat of a landmark case bound to set legal precedent, given the prevalence of AI in hiring processes. 

According to Reuters, about 80 percent of U.S. employers use AI for recruitment, which underscores the potential scope of any biases such systems may carry. The EEOC has issued warnings that employers could be held responsible for discriminatory impacts of such screening software.

The Workday lawsuit is not isolated in its concern over automated systems in recruitment. The EEOC recently settled a case where iTutorGroup had programmed software to reject applicants based on age, a clear violation of the ADEA. This and the Workday case highlight the fact that existing laws are applicable to AI systems, and legal compliance remains crucial.

Why AI Bias in Hiring Matters for Everyone

At the heart of this lawsuit is the integrity of the job market and ensuring that the digital gatekeepers are as fair as the humans they're replacing. What Derek Mobley wants – and what this class action lawsuit seeks to establish – is a level playing field, not just for him but for anyone who's ever felt the cold shoulder of a computerized "no."

It's crucial for everyone that AI has no bias in hiring processes because biased AI can perpetuate or even exacerbate existing inequalities, making it harder for qualified individuals to get fair employment opportunities. 

If AI systems used in hiring are biased, they can unfairly favor certain groups over others based on race, gender, age, or other characteristics, overlooking talented and qualified candidates, reducing diversity in the workplace, and perpetuating systemic discrimination, ultimately affecting people's careers, livelihoods, and equality in society.

Case Details:

• Lawsuit: Mobley et al v. Workday, Inc.
• Case Number: 3:23-cv-00770-RFL
• Court: U.S. District Court for the Northern District of California

Plaintiffs' Attorneys:

• Lee D. Winston and Roderick T. Cooks (Winston Cooks LLC)