An e-mail arrives at 2:13 AM rejecting the applicant for a new job. The applicant had felt her qualifications matched the job criteria perfectly, so she had enthusiastically submitted her application online as requested by the employer. She had not expected a response so soon; after all she had just submitted the application at 3:00 PM the day before. The employer had the application for approximately 11 hours before rejecting it. The applicant believed AI made the rejection decision, especially considering the timing. One more important fact: the applicant was 63 years old.
Was AI involved? How does the applicant ever discover who made the employment decision? I wish I could tell you I made up this scenario, but this is a true story.
The law lags behind new technology and there is barely anything out there about using AI in employment law. However, a new case out of California, Mobility v. Workday, https://caselaw.findlaw.com/court/us-dis-crt-n-d-cal/116378658.html allowed a discrimination case to go forward against the AI provider as well as the employer. The EEOC had filed an amicus brief supporting the position that an AI provider may be liable for violating Title VII and other federal statutes under an agency theory.
Additionally, some states have passed statutes addressing the use of AI in employment decisions. A timely Missouri Bar Journal article in the September/October 2024 issue explains this new legal environment. https://news.mobar.org/the-role-of-ai-in-employment-processes/ I mediate many employment disputes and am eager to take on this issue. Contact KIM L. KIRN at 314 231-4642 for a mediation.
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