EEOC Files Amicus Brief in AI discrimination case

Mathew Moldawer
Mathew Moldawer

In an earlier post I reported that a federal court dismissed a lawsuit in January alleging that an algorithm-based screening tool illegally discriminates against people who are protected by law. In that case, Mobley v. Workday, the Court granted Mobley leave to amend his complaint. 

New ammunition has further fueled this case– the Equal Employment Opportunity Commission (EEOC) filed an amicus brief supporting Mobley. The EEOC’s brief argues Workday’s motion to dismiss should be denied and supports Mobley’s three arguments. Briefly, the EEOC claims that Workday, the screening company, is an agent and indirect employer subject to liability. Workday should be held responsible, the EEOC writes, “because employers have purportedly delegated authority to Workday to make at least some hiring decisions.”

Workday responded that the EEOC motion to file the amicus brief should be denied, arguing the brief was inappropriately partisan and was prejudicial because it delayed the proceeding. 

Whether Workday, as the screener, is an “employment agency” argument has gained the most attention. The law defines an “employment agency” as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.” The court previously dismissed the case, stating that Mobley’s allegations lacked facts which showed Workday helped to recruit and select applicants; that the tools provided by Workday screened based on Workday’s algorithm, the hiring company’s criteria, or a mix of the two; and that Workday was involved in procuring applications. 

The EEOC’s arguments are somewhat contradictory to their guidance which states that employers, not vendors, may be held liable for bias as a result of AI hiring.  Indeed, reports have surfaced that there is significant disagreement within the EEOC about the position they adopted.

This case is one of the first filed against a third-party HR company for their use of AI and has gained a lot of attention.  Attorneys and employers have watched carefully to see whether Mobley will be successful in holding Workday liable.  Stay tuned.

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