Can AI Discriminate? We may soon find out.
By: Kevin L. Golden
Recently, there has been much attention paid to the potential that artificial intelligence (AI) might soon replace large swaths of the workforce. But a recent class action lawsuit filed in California claims AI is already preventing at least one individual from entering the workforce based on his protected characteristics.
Concerns about the use of AI in the context of employment decisions are not new. In October 2021, the Equal Employment Opportunity Commission (EEOC) launched an agency-wide initiative to ensure that AI and other emerging technologies utilized in employment decisions complied with federal civil rights laws. In May 2022, the EEOC filed a lawsuit alleging that a number of affiliated companies utilized application software that automatically rejected female applicants over the age of 55 and male applicants over the age of 60*. In October 2022, the White House Office of Science and Technology Policy issued a Blueprint for an AI Bill of Rights. In January of this year, the EEOC held a public hearing to examine the use of AI in employment decisions. In addition, several states – including California, Illinois, New York, and New Jersey, as well as New York City and Washington D.C. – have enacted or pending legislation relating to the use of AI in employment related decisions. But private claims about the use of AI were, at least until recently, rare.
In his lawsuit, Derek Mobley – who identifies as an African American male over the age of forty who suffers from depression and anxiety – seeks relief against Workday, Inc., claiming that its AI systems “rely on algorithms and inputs created by humans who often have built-in motivations, conscious and unconscious, to discriminate.” Mobley – who possesses a bachelor’s degree in finance from Morehouse College, a historically African American male college, and an associate degree in network systems administration from ITT Technical Institute – claims that he applied “for at least 80-100 positions” that utilize Workday as a “screening tool for talent acquisition and/or hiring. He has been denied employment each and every time.” According to Mobley’s complaint, the screening tools utilized by Workday have a disparate impact on African Americans, those with disabilities, and those over the age of forty. Mobley seeks relief under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.
Mobley’s suit will present questions for the use of AI in employment decisions, both as it is currently utilized and as the use is adopted by more companies in the future. Given the potential risk of claims by employees, applicants, and the EEOC, coupled with emerging legislation on the federal and state level, this area of law will be one to watch for employers.
We will be monitoring these matters, as well as new legislation and suits, as they emerge to provide further insights.
