You aren’t supposed to discriminate against people on the basis of race, age, gender, or sexual orientation. You really aren’t supposed to do it when you’re evaluating job candidates. There are a bunch of laws on the books that codify just how big a no-no that is, but that doesn’t mean discrimination is a thing of the past — in fact, a recent lawsuit garnering attention alleges discrimination is a thing of the future.

All in a Day’s Work

According to their official website, Workday, Inc. “provides unified finance, human resources and student/faculty lifecycle management cloud applications designed for the way people work in today’s organizations.” There’s no way of translating that into English, so let’s just say that they make software that makes HR jobs easier. 

One of these bits of software is at the center of the complaint in the aforementioned Derek Mobley v. Workday, Inc.. Workday has an AI-powered platform that refers, screens, sorts, and evaluates job candidates. It’s not a great look for employers if they are too busy to look at resumes or speak to people they might want to work with, but that’s the subject of another blog. In any case, Workday offers an option to do all the heavy lifting when hiring courtesy of AI.

AI Can Be Biased, Too

Derek Mobley filed a proposed class action suit against Workday last year alleging that their candidate screening platform discriminates based on race, age, and disability.

Mobley, a 40-year-old black man with anxiety and depression, claims that he has been turned down for over 100 jobs he applied for using Workday’s platform because of his race, age, and mental illness. He argues it didn’t matter that he met or exceeded the requirements for the positions, he was rejected by Hewlett Packard, Comcast, Duke Energy, Equifax, Experian, and dozens of other companies — often within hours of submitting his application.

How could an algorithm be biased? Because AI is only as good as its data. For instance, an AI that’s fed a dataset full of young white candidates who don’t disclose their mental illnesses may start looking for candidates with those qualities without realizing what it is doing.

Mobley’s case raises the question of whether Workday is using similarly problematic data. If it is, then Workday’s software may be actively discriminating against applicants, which is a big problem because Workday is a giant in the HR industry. If Mobley’s right, 20% of the market relies on cutting-edge AI built on old-school bias.  

Thrown Out on a Technicality?

Mobley’s original suit proposed a class action alleging that a Workday screening platform discriminates based on rage, age, and disability in violation of several federal laws, including Title VII of the Civil Rights Act of 1964.

U.S. District Judge Rita Lin dismissed the case in January 2024, saying that Mobley hadn’t successfully shown Workday qualifies as an “employment agency” covered by Title VII. Workday didn’t procure employees for employers, as Judge Lin saw it, which meant the original version of Mobley’s case was dead in the water. Undeterred, Mobley refiled a new complaint which was quickly challenged by Workday.

Then, the EEOC got involved.

Equal Employment Opportunities Means Equal Employment Opportunities

In mid-April, the Equal Employment Opportunity Commission filed an amicus brief in San Francisco federal court arguing that Workday may indeed qualify as an employment agency.

According to the EEOC’s brief, Mobley has plausibly alleged that Workday operates as an employment agency, as it performs similar functions such as screening and referral activities. The EEOC argued that Mobley plausibly alleged that Workday is an indirect employer, as it has significant control over employment opportunities for its clients. Therefore, it qualifies as an agent of employers because of the authority employers give Workday to make at least some hiring decisions.

The EEOC says that Workday is an entity covered by and subject to Title VII, the ADA, and the ADEA, meaning the case should proceed to trial. However, the court, not the EEOC, still has the final say over whether the lawsuit can proceed.

Using AI with Intelligence

We’ll see how Mobley’s case turns out. The lawsuit class may cover tens or hundreds of thousands of applicants, and its outcome may have significant implications for Workday and other companies using AI to screen candidates.

Meanwhile, employers may want to review whether their use of AI in HR decisions could be discriminatory. If so, it is better to deal with it now than in court.

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