Jennifer Barna, Senior Counsel in the Employment, Labor & Workforce Management and Litigation practices, in the firm’s Newark office, was quoted in Law360 Employment Authority, in “Robust EEOC Amicus Program Tackles AI, High Court Rulings,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

The amicus briefs the U.S. Equal Employment Opportunity Commission lodged in the first six months of 2024 included a rare district court filing in a suit against a maker of artificial intelligence-powered hiring tools and appellate missives on the reach of an April U.S. Supreme Court ruling.

The 19 amicus filings lodged since January put the EEOC on par with its previous high watermarks, as the commission lodged a record 40 briefs in 2016 and nearly matched that with 38 in 2023. …

Here's a look at five EEOC amicus briefs that caught discrimination lawyers' attention.

Early Stake in the Ground on AI Liability

One of the most high-profile briefs the EEOC lodged in the first half of 2024 landed in California federal court on April 9, where it argued that software developer Workday may be liable under federal laws governing employers if its AI-powered hiring tools unlawfully screen out certain groups of applicants. …

Employment law experts told Law360 that the EEOC's timing gives an indication of the priority level at which they've placed AI-related claims. Of the 544 amicus briefs the commission has lodged since 1995, only 22 — about 4% — hit district court dockets.

Jennifer Stefanick Barna, senior counsel at Epstein Becker Green, added that the commission's position lines up with a broader federal push to regulate AI, and companies should expect scrutiny on this tech to only ramp up.

"The EEOC's decision to submit the brief in Mobley, and the position that they took in it, is consistent with the federal government's larger focus on AI," Barna said. "And it's a lot of what we can expect in terms of attention on AI."

At a recent case hearing, the judge handling the case appeared to entertain the argument that Workday could be held liable under Title VII and other federal statutes, and seemed inclined to allow the case to move past the dismissal stage to the fact-finding phase.

The court has not yet issued a decision, but Barna said a ruling for Mobley "will open up potential avenues for additional litigation."

"It was pretty clear that the court had a concern during the oral argument that a holding for Workday on this issue would leave a bit of an opening for third-party software vendors to engage in discrimination," she said.

Aggressive Stances on Muldrow's Reach

In the justices' unanimous April 17 ruling in Muldrow v. St. Louis, they said employees bringing a workplace discrimination claim over a job transfer under Title VII do not need to show they faced "significant" harm for their lawsuit to move ahead — as some courts have required — just "some" injury. …

As the bounds of Muldrow are in flux, experts said the EEOC's positions are a good early guidepost on the questions the justices left open.

"It's going to take some more litigation winding its way through the courts in order to figure out what it means, so it's always helpful to have an understanding about how the EEOC interprets the standards, because employers certainly want to be compliant," Barna said.

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