We represent victims of reverse discrimination and anti-DEI whistleblowers

News stories have discussed the difficulty for job seekers in a labor market that some observers describe as “frozen.” Even when companies are willing to add new employees, older Americans often believe that the deck is stacked against them. In response, they sometimes choose to omit some of their earlier job experience and their graduation dates. The emergence of artificial intelligence in the recruitment only adds to the challenge, as algorithms frequently weed out resumes of highly experienced workers so that decision-makers never even see them.

A case in the U.S. District Court for the Northern District of California, Mobley v. Workday, alleges that Workday’s AI-powered employment screening tools harm applicants in violation of the Age Discrimination in Employment Act (ADEA). Plaintiff Derek Mobley claims that he applied for jobs with more than 100 employers who use Workday’s technology and never got the position he sought. Initially, Workday sought to dismiss Mobley’s lawsuit, asserting that if any unlawful bias existed, it was perpetrated by the specific employers rather than Workday. The judge rejected this argument and allowed the case to continue. 

Under the ADEA, workers 40 and older have a right to legal relief if an employer has discriminated against them based on their age. There are two general types of discrimination claims. In some cases, the plaintiff points to specific action that was taken against them. Alternatively, an employee or job applicant might allege that a company’s facially neutral polices or practices had a negative effect on a legally protected group. 

In response to Mobley’s filing, Workday now argues that that ADEA disparate-impact claims can be brought only by existing employees, not by job applicants such as Mobely. Workday points to differences between the ADEA and Title VII remedies to support their case. Generally, there are substantial questions about disparate-impact claims going forward since President Trump signed an executive order preventing EEOC enforcement of these cases. However, that order does not apply to private lawsuits. 

It can be difficult at first to identify whether an AI algorithm, illegal company policy or biased manager is to blame for the failure to obtain a job. Should you suspect that something improper occurred due to your age, sex, race, religion or other protected characteristic, reach out to Kardell Law Group.  We handle a full range of employment discrimination matters and can discuss your legal options in a meeting or phone call.