{"id":1401,"date":"2024-04-22T15:47:00","date_gmt":"2024-04-22T19:47:00","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1401"},"modified":"2024-04-22T15:47:00","modified_gmt":"2024-04-22T19:47:00","slug":"eeoc-weighs-in-on-novel-artificial-intelligence-suit-alleging-discriminatory-hiring-practices","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/04\/22\/eeoc-weighs-in-on-novel-artificial-intelligence-suit-alleging-discriminatory-hiring-practices\/","title":{"rendered":"EEOC Weighs In On Novel Artificial Intelligence Suit Alleging Discriminatory Hiring Practices"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Alex W, Karasik, and George J. Schaller<\/strong><\/p>\n

Duane Morris Takeaways<\/em>: <\/strong>In<\/em>\u00a0Mobley v. Workday, Inc., Case No. 23-CV-770 (N.D. Cal. April 9, 2024) (ECF No. 60)<\/em>,\u00a0the Equal Employment Opportunity Commission (\u201cEEOC\u201d) filed a Motion for Leave to File an Amicus Brief in Support of Plaintiff and in Opposition to Defendant\u2019s Motion to Dismiss<\/a>. This development follows Workday\u2019s first successful Motion to Dismiss, about which we previously blogged <\/em>here<\/em><\/a>, after which the Court allowed Plaintiff a chance to amend his complaint.\u00a0<\/strong><\/em><\/p>\n

For employers utilizing Artificial Intelligence in their hiring practices, this notable case is worth monitoring. The EEOC\u2019s decision to insert itself in the dispute demonstrates the Commission\u2019s commitment to continued enforcement of anti-discrimination laws bearing on artificial intelligence use in employment.\u00a0<\/em><\/p>\n

Case Background<\/strong><\/p>\n

Plaintiff, an African American male over the age of forty alleged that he suffered from anxiety and depression and brought suit against Workday claiming that its applicant screening tools discriminated against applicants on the basis of race, age, and disability.\u00a0 Plaintiff further alleged that he applied for 80 to 100 jobs, but despite holding a bachelor\u2019s degree in finance and an associate\u2019s degree in network systems administration, he did not get a single job offer.\u00a0 Id.<\/em>, 1-2 (ECF No. 45).<\/p>\n

Workday moved to dismiss the Complaint in part arguing that Plaintiff did not allege facts to state a plausible claim that Workday was liable as an \u201cemployment agency\u201d under the anti-discrimination statutes at issue.<\/p>\n

On January 19, 2024, the Court granted the defendant\u2019s motion to dismiss, but with leave for Plaintiff to amend, on the ground that plaintiff failed to plead sufficient facts regarding Workday\u2019s supposed liability as an employer or \u201cemployment agency.\u201d\u00a0 Shortly thereafter, Plaintiff filed his Amended Complaint. \u00a0Id.<\/em> (N.D. Cal. Feb. 20, 2024) (ECF No. 47.)<\/p>\n

On March 12, 2024, Workday filed its Motion to Dismiss Amended Complaint, asserting that Workday is not covered by the statutes at issue \u2013 Title VII, the Americans with Disabilities Act (\u201cADA\u201d), and\/or the Age Discrimination in Employment Act (\u201cADEA\u201d) \u2013 because Workday merely screens job seekers rather than procuring them.\u00a0 Id.<\/em>, (ECF No. 50.)\u00a0 On April 2, 2024, Plaintiff filed his opposition (id.<\/em>, ECF No. 59) and, on April 12, 2024, Workday filed its reply. \u00a0Id.<\/em>, (ECF No. 61.)<\/p>\n

The motion is fully briefed and set for hearing on May 7, 2024.<\/p>\n

The EEOC\u2019s Motion for Leave to File an Amicus Brief<\/em><\/strong><\/p>\n

On April 9, 2024, before Workday filed its Reply, the EEOC filed a Motion for Leave to File an Amicus Brief<\/em> in Support of Plaintiff and in Opposition to Defendant\u2019s Motion.\u00a0 Id.<\/em>, (ECF Nos. 60 & 60-1.)\u00a0 The EEOC noticed its Motion for hearing on May 7, 2024.\u00a0 Id.<\/em>, (ECF No. 60.)<\/p>\n

The EEOC describes Mobley <\/em>as a case that \u201cimplicate[s] whether,\u201d Title VII, the ADA, and the ADEA, \u201ccover[s] entities that purportedly screen and refer applicants and make automated hiring decisions on behalf of employers using algorithmic tools.\u201d\u00a0 Id.<\/em>, at 1 (ECF No. 60-1.)\u00a0 The Commission argues that Plaintiff\u2019s Amended Complaint satisfies federal pleading standards \u201cwith respect to all three theories of coverage alleged.\u201d\u00a0 Id.<\/em>, at 4.<\/p>\n

First, with respect to Workday as an employment agency, the EEOC notes that Title VII, the ADA, and the ADEA, all prohibit discrimination by employment agencies.\u00a0 Under each statute, the term \u201cemployment agency\u201d includes \u201cany person regularly undertaking with or without compensation to procure employees for an employer.\u201d\u00a0 Id.\u00a0 <\/em>The EEOC maintains courts generally construe \u201cemployment agency\u201d based on \u201c\u2018those engaged to a significant degree\u2019 in such procurement activities \u2018as their profession or business,\u2019\u201d and the focus on the degree to which an entity engages in \u201cactivities of an employment agency.\u201d\u00a0 Id.<\/em><\/p>\n

The EEOC argues, among these activities, screening and referral activities are classically associated with employment agencies.\u00a0 Id.<\/em>, at 5.\u00a0 The Commission asserts that \u201c[Plaintiff] has plausibly alleged that Workday\u2019s algorithmic tools perform precisely the same screening and referral functions as traditional employment agencies\u2014albeit by more sophisticated means.\u201d\u00a0 Id.<\/em>, at 6.\u00a0 In contrasting Workday\u2019s position, the EEOC urged the Court to find Workday\u2019s arguments that \u201cscreening employees is not equivalent to procuring employees,\u201d and that Workday does not \u201cactively recruit or solicit applications\u201d as unpersuasive.\u00a0 Id.<\/em>, at 7.<\/p>\n

Second, the EEOC argues leading precedent weighs in favor of Plaintiff\u2019s allegations that Workday is an indirect employer.\u00a0 Taking Plaintiff\u2019s allegations as true, the EEOC contends that \u201cWorkday exercised sufficient control over [Plaintiff\u2019s] and others applicants\u2019 access to employment opportunities to qualify as an indirect employer,\u201d and \u201cWorkday purportedly acts as a gatekeeper between applicants and prospective employers.\u201d\u00a0 Id.<\/em>, at 11.\u00a0 <\/em><\/p>\n

The EEOC argues Workday\u2019s position on sufficient control misses the point.\u00a0 Workday\u2019s assertion that it \u201cdoes not exert \u2018control over its customers,\u2019 who \u2018are not required to use Workday tools and are free to stop using them at any time,\u201d is not the inquiry.\u00a0 Id.<\/em>, at 12.\u00a0 Rather, the relevant inquiry is \u201cwhether the defendant can control or interfere with the plaintiff\u2019s access<\/em> to that employer,\u201d and the EEOC notes that the nature of that control or interference \u201cwill always be a product of each specific factual situation.\u201d\u00a0 Id.<\/em><\/p>\n

Finally, the EEOC maintains that Plaintiff plausibly alleged Workday is an agent of employers. The EEOC also maintains that under the relevant statutes the term \u201cemployer\u201d includes \u201cany agent of\u201d an employer and several circuits have reasoned that an employer\u2019s agent may be held independently liable for discrimination under some circumstances.\u00a0 Id.\u00a0 <\/em><\/p>\n

In analyzing Plaintiff\u2019s allegations, the EEOC argues that Plaintiff satisfies this requirement, where Plaintiff \u201calleges facts suggesting that employers delegate control of significant aspects of the hiring process to Workday.\u201d\u00a0 Id.<\/em>, at 13.\u00a0 Accordingly, the EEOC concludes that Plaintiff\u2019s allegations are sufficient and demonstrate \u201cWorkday\u2019s employer-clients rely on the results of its algorithmic screening tools to make at least some initial decisions to reject candidates.\u201d\u00a0 Id.<\/em>, at 14.<\/p>\n

On April 15, 2024, the Court ordered any opposition or statement of non-opposition to the EEOC\u2019s motion for leave shall be filed by April 23, 2024.\u00a0 Id.\u00a0 <\/em>(ECF No. 62.)<\/p>\n

Implications For Employers<\/strong><\/p>\n

With the EEOC\u2019s filing and sudden involvement, Employers should put great weight on EEOC enforcement efforts in emerging technologies, such as AI.\u00a0 The EEOC\u2019s stance in Mobley <\/em>shows that this case is one of first impression and may create precedent for pleading in AI-screening tool discrimination cases regarding the reach of \u201cemployment decisions,\u201d by an entity \u2013 whether directly, indirectly, or by delegation through an agent.<\/p>\n

The Mobley <\/em>decision is still pending, but all Employers harnessing artificial intelligence for \u201cemployment decisions\u201d must follow this case closely.\u00a0 As algorithm-based applicant screening tools become more common place \u2013the anticipated flood of employment discrimination lawsuits is apt to follow.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Alex W, Karasik, and George J. Schaller Duane Morris Takeaways: In\u00a0Mobley v. Workday, Inc., Case No. 23-CV-770 (N.D. Cal. April 9, 2024) (ECF No. 60),\u00a0the Equal Employment Opportunity Commission (\u201cEEOC\u201d) filed a Motion for Leave to File an Amicus Brief in Support of Plaintiff and in Opposition to Defendant\u2019s Motion … <\/p>\n

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