Messner Reeves New York Partner Richard Reice Addendum to New York Law Journal Article on Workplace Bias and Predictive AI

In a recent article for the New York Law Journal, “Battling Bias In Workplace Predictive A.I.: Challenges for Employers and the Bar,” Messner Reeves New York Partner Richard Reice examined the potential for predictive artificial intelligence (AI) to exercise bias when analyzing and sorting potential job applicants.

On January 26, 2024, after a prominent case on the matter was dismissed, he wrote the following addendum:

Addendum to Richard Reice, 1/19/2024 New York Law Journal Article: Battling Bias In Workplace Predictive A.I.: Challenges for Employers and the Bar.

In the article above, I cited Mobley v. Workday Inc., as one of the few AI bias cases pending in the courts. Significantly, the case, filed in 2023, has just been dismissed by the Federal Court in the Northern District of California. (2024 WL-208529). You may recall that Mobley sued after being rejected by 80-100 companies that used Workday’s AI-based applicant screening tool because, he alleged, it was configured to disfavor Black males over 40.

Having brought his claim under Title VII and the ADEA against Workday and not the applied-to employers, Mobley had to allege that the AI vendor was an employment agency whose business it was to regularly procure employees for an employer in order to recover under those statutes. The Court found that Mobley had failed to allege sufficient facts to meet that burden. Because Mobley informed the Court he could provide additional facts, the Court granted him leave to amend until mid-February 2024.

Mobley also alleged that Workday could be found liable as an agent of its employer clients. This too failed because Mobley lacked facts to plead that Workday had been granted control over its customers’ hiring process. Mobley’s claims of intentional discrimination and disparate treatment were also dismissed.

Mobley will likely amend his Complaint which will lead to another round of motion practice. Mobley, however, faces an uphill battle in getting the Court to find Workday liable for the perceived sins of its customers.

Learn more about Richard’s experience and practice here.

When it comes to Labor & Employment law, Messner Reeves LLP is well-versed in the intricate maze of complex labor and employment law issues. We regularly help employees and employers from companies of all sizes and across multiple industries to develop preventive practices and procedures that minimize risk, as well as resolve disputes and help structure business affairs.

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