Discrimination lawsuit against Workday moves forward

A lawsuit against a Tri-Valley enterprise software company is continuing to make its way through the courts, with the case now being considered a collective action following a judge’s order last month.

The case was initially brought forward by Derek Mobley in 2023, alleging that he was discriminated against on the basis of age, race and disability by employers using Workday’s platform in their hiring process. Three new plaintiffs have now joined the collective action, with all four alleging features of the platform engage in age discrimination in its recommendations to clients.

“We continue to believe this case is without merit,” a Workday spokesperson told the Pleasanton Weekly. “Central to the Plaintiff’s allegations is that Workday products make hiring decisions on behalf of our customers, which is not true. We’re confident that once Workday is permitted to defend itself with the facts, the Plaintiff’s claims will be dismissed.”

The case has so far proceeded despite a motion to dismiss by Workday last summer, with the judge granting the dismissal of claims that classified Workday as an employment agency and that it had engaged in intentional discrimination, but contending that Workday could still be held liable for alleged discrimination by clients using its software in cases in which the hiring process would have otherwise been done manually. 

Since then, attorneys for Workday have argued that no collective class of plaintiffs can be formed because there are no plaintiffs – including Mobley himself – who fit into the proposed parameters of that group. They contend that Workday does not make recommendations regarding its clients’ hiring decisions, that there is no uniform policy Mobley’s complaint refers to, and that given the range of job qualifications amongst members of the proposed collective, they cannot be categorized as “similarly situated”.

U.S. District Judge Rita Lin concluded in her May 16 order that none of these arguments hold up at this stage of the proceedings.

While Workday may not play an active role in its clients’ hiring decisions, she pointed to wording on its website advertising tools described as artificial and machine learning driven job recommendations, as well as its optional “Candidate Skills Match” tool that uses AI to compare and contrast a candidate’s application with the client’s job posting to determine whether a candidate is a “strong”, “good”, “fair” or “low” match for the job, or if the analysis is pending or unable to score.

The judge also pointed to questions remaining about Mobley’s allegation that Workday’s AI models are trained on existing employees at a company, and that they might not be reflective of the hiring pool for any given position.

“Workday appears to take the position that because its AI recommendation system supposedly cannot auto-reject applicants without some degree of participation by the employer, Workday does not ‘recommend,'” Lin wrote.

She added that Mobley’s claim that Workday’s AI products themselves participate in employers’ decision-making processes is, “a concept that is broader than auto-rejections”.

“Therefore, even if Workday is taken at its word that its AI recommendation system cannot auto-reject an applicant, Workday is incorrect that the proposed collective is memberless,” Lin wrote. “An individual who received a ‘low’ CSM score, for example, could qualify as having been denied an employment recommendation. Similarly, Mobley has substantially alleged that the WAC operates to recommend certain applicants over others in a way that causes a disparate impact.”

Attorneys for Mobley argue that the WAC (“Workday Assessment Connector”) uses machine learning to “observe that a client-employer disfavors certain candidates who are members of a protected class, (and) decrease the rate at which it recommends those candidates”.

According to the judge’s ruling last month, attorneys for Workday made an oral argument “without introducing any evidence on the issue” that the WAC functions “as a bridge to allow employers to access only ‘third-party’ AI features”, which are optional tools that aren’t central to Workday’s platform.

Central to the case is Mobley’s allegation that he has applied for over 100 positions with companies using Workday’s screening tools, and that he has been rejected for all of those jobs. According to the three additional plaintiffs, they are also over the age of 40 and have submitted more than 100 applications for jobs they were qualified for via Workday’s platform, but denied the jobs almost every time.

According to the judge’s ruling, the collective class of plaintiffs that was preliminarily certified would consist entirely of those who have applied to jobs in which employers have opted into Workday’s AI features and have been subject to scoring, sorting, screening, and ranking by those algorithms. 

“It is unnecessary to examine each individual’s qualifications, application volume, or rejection rate to determine if they are members of the collective,” Lin wrote. “Whether Workday’s AI recommendation system has a disparate impact on applicants over forty is a question that is addressed across the collective, not on a member-by-member basis.”

The two parties were ordered to file a case management statement including a proposed timeline for targeted discovery, and a summary of what aspects of the preliminary certification they are unable to reach an agreement on to be discussed at a case management conference this week.