Calif. Court Ruling on Age Discrimination May Impact AI Hiring Technology, Lawyers Say
A recent decision by a California federal court that granted collective action certification in an age-discrimination case about using AI in the hiring process has larger implications for AI-driven recruiting technology, said Davis Wright attorneys Jeremy Merkelson and Erik Mass in a blog post Wednesday.
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“The court's decision marks what we believe to be the first in the country to preliminarily certify a collective action based on alleged age discrimination stemming from the use of artificial intelligence in hiring,” the lawyers blogged. “The decision may significantly impact employers and vendors that rely on AI-driven recruiting technologies and certainly raises the specter of greater compliance risk and scrutiny.”
Case 23-00770 in the U.S. District Court for Northern California was brought by a group of job applicants who alleged they were rejected from a job by system software company Workday’s AI-based hiring tool. They filed their complaint under the Age Discrimination in Employment Act (ADEA).
“The court ruled that claims based on disparate impact from algorithmic hiring systems are suitable for collective treatment at least at this early stage -- even when individual applicants applied for different roles at different companies and each company may have utilized the AI-based features and output in their hiring process differently,” the Davis Wright lawyers said.
“Specifically, the plaintiffs claim that the AI tools rely on biased training data or mimic (and exacerbate) prior discriminatory hiring practices that disfavor certain classes of job candidates,” Merkleson and Mass said. “The plaintiffs also allege that, in many cases, applicants cannot advance in the hiring process unless they satisfy Workday's screening algorithms.”
While the attorneys noted that preliminary certification is almost always granted, they said this ruling was notable because it finds that federal anti-discrimination laws can be applied to AI tools. Given this outcome, they recommended that companies audit their automatic decision-making tools, understand how they impact the hiring process and implement human oversight where needed.