Can AI Discriminate? A Litigation Update.
By: Kevin L. Golden
It seems a day cannot go by without some news about how artificial intelligence (AI) is, or will, impact the workforce. There are developments on the federal, state, and local levels with regard to how AI platforms can be used, what disclosures must be made in those events, and what information must be publicly disclosed if an employer uses AI. There are also notable, and significant, developments in two lawsuits alleging that AI platforms utilized discriminatory practices.
In the first action, the Equal Employment Opportunity Commission (EEOC) alleged that that a tutoring agency had “programmed their application software to automatically reject female applicants over the age of 55 and male applicants over the age of 60.” The EEOC further alleged that the defendants had “failed to hire … more than 200 other qualified tutor applicants age 55 and older … because of their age.” The defendants denied those allegations and the matter moved into the first of two phases of discovery (which phase focused on whether the tutors were independent contractors as opposed to employees). However, the matter has now reached a tentative settlement, with the EEOC and the defendants requesting the court’s approval of a consent decree that would, in notable part, enjoin the defendants from “(i) screening Tutor Applicants based on age; and (ii) requesting dates of birth for Tutor Applicants before a job offer is made,” enjoin the defendants from rejecting applicants on the basis of their sex, and require the defendants to pay $365,000 into a qualified settlement fund. The proposed decree would also provide the EEOC with monitoring abilities over the defendants for up to five years. The parties now await the Court’s approval of the proposed decree.
In the second action, recently discussed in a prior update, defendant Workday, Inc. (Workday) moved to dismiss the class action complaint filed by Derek Mobley. In his complaint, Mobley claiming that Workday’s AI systems “rely on algorithms and inputs created by humans who often have built-in motivations, conscious and unconscious, to discriminate.” Mobley further alleged that this software had resulted in the rejection of his application for between 80 and 100 jobs. Notably, Mobley had alleged that Workday was an “employment agency” that “provides [its] services for hundreds if not thousands of companies, including numerous Fortune 500 firms.”
Workday has now moved to dismiss Mobley’s complaint arguing, among other things, that it is not an “employment agency,” that Mobley failed to exhaust a portion of the claims he is now asserting, that Mobley failed to allege that Workday acted with discriminatory intent, and that Mobley “fails to identify a specific employment policy or practice that allegedly caused an unlawful disparity.” More specifically, Workday argues that Mobley failed to identify “any identifiable employment practice that could have caused an unlawful disparity” and failed to identify whether the discriminatory decisions were the result of a single product, different products, or the algorithms utilized by those platforms. Mobley has moved for an extension of time to plead in response to the motion, which request is now before the Court.
We will be monitoring these matters, as well as new legislation and suits, as they emerge to provide further insights.