By Daniel Wiessner
April 11 (Reuters) - The U.S. Equal Employment Opportunity Commission has told a federal judge that human resources software firm Workday must face a proposed class action alleging that it violated federal anti-bias laws by using artificial intelligence-powered software to screen out job applicants for other employers for discriminatory reasons.
The commission in an amicus brief filed Wednesday in San Francisco federal court argued that Workday is an "employment agency" subject to Title VII of the Civil Rights Act of 1964 and other laws because its software determines whether many applicants are ever considered for jobs at all.
The brief came in a novel lawsuit filed last year by Derek Mobley, who claims he has been turned down for more than 100 jobs he applied for using Workday's platform because he is Black, over 40, and has anxiety and depression.
The EEOC in its brief urged a federal judge to reject Workday's pending motion to dismiss the case on grounds that it is not an employer or employment agency under Title VII and laws banning discrimination based on disability and age.
"Mobley has plausibly alleged that Workday’s algorithmic tools perform precisely the same screening and referral functions as traditional employment agencies — albeit by more sophisticated means," EEOC lawyers wrote in the brief.
The commission did not take a position on the merits of Mobley's claims.
Workday, which has denied wrongdoing in the case, did not immediately respond to a request for comment. Nor did lawyers for Mobley.
U.S. District Judge Rita Lin is scheduled to hold a hearing on Workday's motion to dismiss on May 7.
Lin dismissed the original complaint in January, saying it lacked specifics, but gave Mobley a chance to file an amended complaint fleshing out the claims. He did so in February, saying that by using Workday's platform, employers are essentially handing over their authority to make hiring decisions to the company.
Mobley says he was directed to a Workday website to apply for jobs with Hewlett Packard, Comcast, Duke Energy, Equifax and Experian, among other companies. He was rejected each time, often within hours of applying, even though he met or exceeded the requirements for the positions, according to the complaint.
Government agencies and worker advocates have expressed concerns that AI tools can discriminate against job applicants when they are built using data that reflects existing biases.
The EEOC has warned employers that they can be held legally liable if they fail to prevent screening software from having a discriminatory impact.
But there has been little litigation thus far over employers' use of the tools, which experts have said could be due to many job applicants not knowing when employers use AI software and the complexities of suing over cutting-edge technology.
The case is Mobley v. Workday Inc, U.S. District Court for the Northern District of California, No. 3:23-cv-00770.
For Mobley: Lee Winston and Roderick Cooks of Winston Cooks
For Workday: Julie Totten of Orrick, Herrington & Sutcliffe
Read more:
Tutoring firm settles US agency's first bias lawsuit involving AI software
Workday accused of facilitating widespread bias in novel AI lawsuit
(Reporting by Daniel Wiessner in Albany, New York)
((daniel.wiessner@thomsonreuters.com))
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