Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in Law360 Employment Authority, in “EEOC Stance in Bellwether AI Suit Raises Stakes for Vendors,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Equal Employment Opportunity Commission recently suggested that software vendor Workday may be liable if its artificial intelligence-powered hiring tools unlawfully screen out certain groups of applicants, a position that experts said could encourage private class actions if courts agree.

The workplace bias watchdog submitted a brief April 9 in a California federal court case brought by an unsuccessful job applicant who claimed that Workday's automated system, used by businesses to sift through resumes, puts candidates who are Black, older and disabled at a disadvantage.

If Workday's program dictates which resumes are passed on to companies and those selections skew in a biased direction, the EEOC said the company may be liable under Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Though not accepted by the court yet, the EEOC's brief is notable for staking out a position in an unsettled area of the law, experts said. If the agency's take on the law gains traction, that could set the stage for class action complaints against software developers, since automated candidate evaluation tools by nature have similar effects on broad swaths of people. …

"Loophole" in the Law

The decision to file the brief proved divisive within the five-seat agency, as a source familiar with the vote told Law360 that the commissioners voted on party lines to put it on the docket. Democratic commissioners Charlotte Burrows, Jocelyn Samuels, and Kalpana Kotagal were in favor while Republican appointees Sonderling and Andrea Lucas opposed the move.

Employment law experts were also divided. …

However, management-side employment attorneys said it's not apparent that AI-backed hiring programs play enough of a role in the selection process to invoke Title VII and other employment laws.

"It's not entirely clear to me that there is an accurate understanding of how the AI tool works," said Epstein Becker Green employment partner Adam S. Forman, who frequently advises businesses on AI in the workplace. "I'm not in a position to opine on Workday, but generally speaking, resume screeners aren't selecting anybody, a person is."

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