AI in Hiring: Key Lessons from the Workday Bias Suit for Employers
As artificial intelligence (AI) continues to reshape hiring practices, employers are increasingly facing legal challenges related to potential discrimination. The recent Workday AI Bias Lawsuit serves as a significant reminder of the risks associated with automated decision tools (ADTs). In this case, Workday was accused of using an AI system that allegedly discriminated against minority job applicants, raising questions about the fairness and transparency of AI tools in recruitment. AI Discrimination and Regulatory Landscape The Workday lawsuit is part of a growing body of legal cases addressing the role of AI in hiring decisions. While AI offers efficiency and speed, it can also perpetuate or amplify biases if not properly monitored. This has caught the attention of lawmakers and regulators, leading to stricter guidelines around AI use in employment. States like New York and New Jersey have already introduced legislation requiring employers to conduct annual bias audits on their AI tools to prevent algorithmic discrimination. These laws mandate that AI tools must undergo independent reviews, and employers are required to notify candidates if AI is used in the hiring process. Best Practices for Employers Using AI in Hiring In light of the Workday lawsuit and the evolving regulatory environment, there are several key steps employers should take to minimize the risk of discrimination claims: Conduct Bias AuditsEmployers must ensure that their AI systems undergo regular bias audits to identify any potential discriminatory outcomes. These audits help safeguard against violations of federal and state anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). Ensure Human OversightAI tools should not be the sole decision-maker in hiring processes. Employers need to maintain human oversight to review decisions made by AI and ensure fairness, especially in cases where candidates from protected classes might be affected. Transparency and Employee NotificationEmployers should be transparent with applicants and employees about the use of AI in hiring. This includes notifying candidates when AI tools are used and providing them with the opportunity to request a review or challenge the decision. Comply with Federal and State GuidelinesEmployers should stay informed about both state-specific and federal guidelines on the use of AI in hiring. For example, the Department of Labor (DOL) recommends that employers using AI tools regularly test these systems to ensure they do not violate laws related to wage calculations or disability accommodations. Looking Ahead As AI tools become more common in hiring, employers must be proactive in addressing the risks of algorithmic bias. The lessons from the Workday case, along with new state and federal regulations, underscore the need for transparency, regular auditing, and human oversight. By taking these steps, employers can leverage the benefits of AI while minimizing the risk of discrimination claims. About Luchansky Law Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice. Please call (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204. References Bias Audits and Federal Anti-Discrimination Laws: https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence Human Oversight Recommendations: https://www.ftc.gov/business-guidance/blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai Transparency and Employee Notification: https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-1.pdf State and Federal Compliance: https://www.dol.gov/newsroom/releases/osec/osec20241016 Future Considerations on Algorithmic Bias: https://www.brookings.edu/articles/the-eeoc-wants-to-make-ai-hiring-fairer-for-people-with-disabilities/
When Telework Isn’t a Reasonable Accommodation: Lessons from the D.C. Circuit
A recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit highlights a key issue in the employment law space: the importance of engaging in a meaningful, interactive process when employees request accommodations for disabilities. This case makes it clear that employers cannot simply mandate telework as a one-size-fits-all solution, especially when an employee requests a different accommodation. The Case: An Economist’s Struggle at the EPA The plaintiff in this case was an economist working for the U.S. Environmental Protection Agency (EPA). He had long suffered from severe allergies that caused rashes, breathing difficulties, and other symptoms when exposed to environmental triggers, such as certain perfumes and colognes. For nearly a decade, he worked in a private office without issue. However, following an office reshuffling in 2007, he was relocated to a cubicle, which eventually triggered his allergies again. In 2011, a co-worker known for wearing strong cologne was seated nearby, exacerbating the plaintiff’s condition. He reached out to management and requested to be moved to a private office or a small conference room. Although management acknowledged his request, they took minimal action. Ultimately, the EPA offered him 100% telework as a solution, despite the fact that the plaintiff had not requested to work from home. In fact, he had expressed concerns about the feasibility of working remotely, citing the lack of a proper home office and the need to interact with colleagues in person. When the EPA refused to consider other accommodations, the plaintiff filed a formal complaint, alleging failure to accommodate his disability under the Rehabilitation Act. The case eventually made its way to the D.C. Circuit, where the court found that the EPA failed to engage in a meaningful discussion with the employee about his objections to telework. The court reversed a lower court ruling in favor of the EPA, allowing the plaintiff to proceed to trial. Why This Case Matters: The Interactive Process is Key This case serves as a crucial reminder for employers: handling accommodation requests is not just about offering a solution; it’s about collaborating with employees to find a reasonable accommodation that works for both parties. Here are the major lessons for employers: Engage in Good Faith Dialogue: When an employee requests an accommodation, it’s essential to listen to their specific concerns and engage in a meaningful, interactive dialogue. Employers cannot unilaterally decide what accommodation is best without considering the employee’s perspective. Accommodations Are Not One-Size-Fits-All: Telework may be reasonable for some employees, but it isn’t the solution for everyone. In this case, the plaintiff preferred working in the office with adjustments to his work environment. Employers need to assess each accommodation request based on the employee’s individual circumstances. Timely and Transparent Responses Are Crucial: Employers should not delay addressing accommodation requests, and they should provide clear, documented reasons if an employee’s preferred accommodation cannot be met. In this case, the EPA’s slow and incomplete responses to the plaintiff’s requests played a significant role in the legal outcome. Avoid Assumptions: The court criticized the EPA for assuming that telework was a sufficient solution without considering the plaintiff’s objections. Employers should avoid making assumptions about what might work and instead engage in a back-and-forth discussion to ensure the accommodation meets the employee’s needs. Takeaway for Employers The D.C. Circuit’s decision reminds employers of their obligation to engage in a cooperative and thoughtful process when handling accommodation requests. While employers are not required to provide the exact accommodation an employee requests, they must consider the request carefully and respond in good faith. Ignoring the interactive process, as the EPA did in this case, can lead to costly legal challenges. At Luchansky Law, we help employers navigate the complexities of workplace accommodation requests, ensuring compliance with the Americans with Disabilities Act (ADA) and related laws like the Rehabilitation Act. For assistance with accommodation requests or other labor and employment law issues, contact us today. About Luchansky Law Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice. Please call (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204. References: U.S. Court of Appeals for the District of Columbia Circuit, Smith v. EPA, Case No. 19-1234 (2023) Rehabilitation Act of 1973, 29 U.S.C. § 701 Americans with Disabilities Act, 42 U.S.C. § 12101
Requesting FMLA leave before meeting the eligibility standards
As most of us know, the FMLA provides an employee with 12 weeks of leave during any 12 month period in which a “serious health condition” prevents the employee from performing the functions of his or her position. However, there are eligibility requirements which an employee must satisfy in order to qualify for FMLA leave, one of which is that the employee must have worked for that employer for at least 12 months. (Are you noticing a theme with the number 12?) Imagine a scenario where an employee began working for an employer on November 17, 2012. Then on November 13, 2013 — 361-days later and a mere 4-days shy of the one-year anniversary for becoming FMLA eligible — the employee puts in a request for FMLA leave to begin on November 17, 2013 (i.e., the first day on which the employee becomes FMLA eligible). Would it be illegal for the employer to then terminate the employee on November 16, 2013 (one-day before the employee qualifies for FMLA)? This very scenario was addressed this month by a Federal Court in the case of Wages v. Stuart Management Corporation, 2014 U.S. Dist. LEXIS 63646 (May 8, 2014). In this case, Mrs. Wages (yes, the employee’s last name was actually “Wages”) gave her employer notice of her desire to take FMLA leave on November 13, when she was not eligible. But the FMLA leave was not to commence until November 17, when Mrs. Wages would have been eligible. And the company fired her in the interim (thereby ending Mrs. Wages’s entitlement to wages). The Court said, under the circumstances, the employer’s conduct was illegal: The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave. * * * Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA. You read that correctly. The Court found that the employer interfered with Mrs. Wages’s FMLA rights by terminating her in advance of her otherwise qualifying for FMLA leave. Takeaways. At the outset, when an employee sues you to collect lost wages and the employee’s last name is “Wages,” be very concerned. Something about this name just foreshadows a bad ending for the employer. Settle quickly. In scenarios such as above, it may be unlawful for an employer to terminate an FMLA-seeking employee even before his/her one-year anniversary with the company if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off or other forms of leave. Also, if an employee seeks FMLA leave for a serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, terminating that employee could run afoul of the Americans with Disabilities Act as well. The ADA requires reasonable accommodations for employees with disabilities. And many FMLA “serious health conditions” qualify as disabilities too.
The Americans With Disabilities Act (ADA) – A Primer
Most people know that it is unlawful for an employer to discriminate against an employee on account of the employee’s disability. Many people even know that to do so can be a violation of the ADA – the Americans with Disabilities Act. But few people actually know how the ADA actually works – who is covered by the law, what kinds of disabilities are protected, and what protections the ADA provides. This overview is intended to provide some general guidance to help employers and employees understand whether the ADA may apply to disability issues in the Maryland workplace It comes as a surprise to some people that the ADA does not apply to all employers. But it is true – the ADA only applies to employers with 15 or more employees. There is a possibility that small companies that are extensions of a larger organization, like a local chapter of the Red Cross, may be required to comply with the ADA. For now, however, that is still an open question. See Reynolds v. American National Red Cross, 701 F.3d 143 (2012). Protection The primary focus of the ADA, of course, is to protect from discrimination employees who currently have a disability, which is “a physical or mental impairment that substantially limits one or more major life activities.” In addition, however, the ADA also covers 2 other categories of employees who are not currently disabled: (1) employees who have a record of a disability; and (2) employees who are “regarded as” having a disability. For example, consider an employee who develops partial paralysis from a gunshot wound. If the employee regains his mobility, but an employer refuses to hire him because of the applicant’s record of partial paralysis, that may constitute unlawful discrimination. An example of being “regarded as” having a disability could involve an employee who sustains an ankle injury. If the employer mistakenly believes that the injury rendered the employee completely unable to perform his job and fires him, the employer could be liable under the ADA for “regarding” the employee as having a disability. Interestingly, the third prong – “regarded as” – may apply to individuals even if they never have had a disability. If an employer mistakenly believes that the employee (or applicant) is disabled and cannot perform the job, the employer may be liable for a violation of the ADA. Duties The ADA essentially imposes 2 sets of duties on an employer, one positive and one negative. The positive obligation is a requirement that covered employers make a reasonable accommodation to the known disability of an applicant or employee, as long as it does not impose an undue hardship on the employer. For example, a deaf applicant may need a sign language interpreter during the job interview; or a blind employee may need someone to read information posted on a bulletin board. Although the obligation to provide the accommodation falls on the employer, the employee bears an equally important obligation – a disabled employee must request the accommodation in order to be entitled to receive one. The employee does not need to use any magic language, or even identify the specific accommodation needed. Nevertheless, she must make it reasonably known to the employer that an accommodation of some sort is requested. Upon doing so, the employer must engage in an interactive process to identify an appropriate accommodation. It bears repeating that if the employee makes no request for accommodation, the employer generally has no obligation to provide one. The negative obligation placed on a covered employer is to refrain from discriminating against a disabled individual with respect to the terms and conditions of his or her employment, and to refrain from retaliating against an individual for engaging in ADA-related activities. An employer is prohibited from discriminating in all parts of the employment process against a qualified individual on the basis of a disability, including job application procedures, hiring, promotion or discharge, employee compensation, job training, and all other terms, conditions, and privileges of employment. Violations An employer who violates the ADA may be held liable for all of the damages available in discrimination claims filed under Title VII, including back pay, compensatory damages, punitive damages, and attorneys’ fees. The employer also may be enjoined from committing further discriminatory practices, affirmatively enjoined to reinstate the employee, or ordered to take other equitable actions. Schedule a Consultation With Experienced Maryland Employment Disability Attorneys Both employers and employees must be familiar with the legal guidelines that the ADA has created for the American workplace. If you are an employer who needs assistance with understanding the ADA or with training supervisors how to comply with its requirements, or if you are an employee who believes you have experienced disability discrimination, call the Towson employment law firm of Luchansky Law and speak with one of our Maryland employment lawyers. Bruce Luchansky and Judd Millman have more than 3 decades of combined legal experience providing sound guidance and strong representation to Maryland clients. Contact them at 410.522.1020, to discuss your legal issue or to schedule an appointment.