The EEOC is continuing its position on on preventing potential discrimination caused by automated systems with an amicus brief filed Tuesday. claudenakagawa/Getty images
EEOC says HR software company Workday should face bias claims in lawsuit
The federal agency filed an amicus brief in a case in which a job applicant is alleging algorithmic discrimination.
The Equal Employment Opportunity Commission filed an amicus brief in an employment discrimination case in which a job applicant is suing HR tech company Workday, alleging that the artificial intelligence component of its job screening tools discriminates against users based on race, disability and age.
Plaintiff Derek Mobley alleges that Workday provided employers with algorithmic capabilities to inappropriately screen applicants based on personal information entered into application prompts. Mobley, a Black man over the age of 40 suffering from anxiety and depression, applied for over 100 positions through Workday platforms beginning in 2017, with every application reportedly being rejected. Mobley alleges these rejections are based on his protected traits, in violation of federal law.
EEOC isn't taking a position on the substance of Mobley's claims. But the agency does argue in its brief that "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.” They're urging the court not to back Workday's bid to dismiss the case on the grounds that the software company is not an employment agency.
"As the Ninth Circuit has held in other contexts, online platforms cannot avoid liability when their own design elements cause or contribute to unlawful discrimination," EEOC said.
Mobley argues that Workday is acting as an employment agency, or employer’s agent — even as a third party software provider — primarily because “referral activities” and use of algorithms to filter out certain applicants are key functions of employment agencies.
The EEOC has taken stances before on preventing discrimination caused through the use of automated systems, including artificial intelligence and algorithms. In May 2023 it released new technical guidance on preventing this type of discrimination in a diverse set of workplace conditions, including in hiring processes.
EEOC declined to answer specific questions from Nextgov/FCW, and pointed to the brief in the Mobley case. But the agency did single out the use of artificial intelligence, automated recruiting and technology tools that make selections in the job-searching process as well as automated performance management software as key issues in a five-year strategic enforcement plan released in January 2023.