Workday asks judge to dismiss lawsuit over claims its AI tools discriminate against job applicants

SAN FRANCISCO (CN) – Lawyers for Workday told a federal judge Monday that California’s civil rights law should not apply to the group’s claims that its artificial intelligence-based screening software discriminates against applicants based on age, race and disability.

“It doesn’t make sense for a Texas employer with a Texas applicant who’s going to perform work in Texas, I don’t think there’s any dispute that that employer would be subject to Texas employment discrimination law,” argued Kayla Grundy of Orrick, Herrington & Sutcliff, an attorney for Workday.

“What the plaintiffs are asking the court to do is also apply California law, depending on who is the defendant in the action. That’s not how the law is intended to work.”

Lead plaintiff Derek Mobley and other plaintiffs over 40 say they submitted hundreds or thousands of applications through systems using Workday without interviewing because the platform’s automated decision-making disproportionately excludes African-American, Asian-American, female, elderly and disabled applicants.

In one tentative thought issued on May 27, US District Judge Rita Lin said the California Fair Employment and Housing Act (FEHA) applies to the conduct at issue because Workday is directly liable for “engaging in FEHA-regulated activities on behalf of the employer.”

“… Holding business entity agents like Workday liable for their discriminatory conduct within the scope of FEHA is consistent with public policy and the ‘remedial purposes’ of FEHA,” said Nominee Joe Biden.

However, Grundy told the judge in oral arguments that it would be inappropriate for California law to supersede the law of another state, or even another country, just because a company uses Workday to hire employees.

“There is no reason that California, based on the location of an agent in an employment context, can claim itself as the primary law that would apply. Whether that employer and employee are in another state, internationally, or whether they are in California, there are too many variables and not enough context that would make California’s interest in resolving this dispute greater than any other state’s,” she said.

In contrast, the plaintiffs argued that FEHA applies because Workday’s applicant screening systems, including the AI ​​tools they claim unfairly evaluate and reject applicants, were designed and operated from the company’s California headquarters.

“We’re just trying to make Workday stand up to what it did within California in terms of algorithmic decision-making, development and delivery of tools,” said plaintiffs’ attorney Roderick Cooks of Winston Cooks.

Grundy disagreed, arguing that there is no clear understanding of what California conduct the plaintiffs are challenging. He said that if the relevant Workday programs or servers were created or operated out of state, the conduct in question might not even exist in California.

“What are we defending against? The ‘operation’ is so amorphous that anything can be done down the line,” she said.

Lin did not say when he would issue a decision.

In a statement, a representative for Workday told Courthouse News that the company’s AI recruiting tools only look at job qualifications, not protected traits, and are “rigorously tested” to confirm they don’t harm protected groups.

“The claims in the lawsuit are false. Workday’s AI recruiting tools do not make hiring decisions and are designed with human oversight at their core,” they said.

A representative for the plaintiffs did not immediately respond to a request for comment.

In January, Lin discharged plaintiffs’ second partially amended complaint, writing that it “lacks any non-conclusive factual allegation as to what illegal conduct occurred in California.” However, she granted the plaintiffs leave to amend their claims.

Last month, Lin conditionally certified a class of all individuals over the age of 40 who applied for a job using Workday’s job application platform and were rejected between September 24, 2020 and now.