Discrimination Claims

Employer's Toolbox

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/  

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Protection Against Discrimination in Maryland Workplaces

Baltimore County, MD employment attorney Bruce Luchansky answers: “Are there laws that can protect me against discrimination in my place of employment?”  Absolutely.   But the laws only protect against certain types of discrimination, so it is important to know what types of discrimination are illegal.  In Maryland, employers may not discriminate on the basis of race, color, sex, religion, national origin, ancestry, alienage, age, disability, marital status, sexual orientation, and genetic information.   If you believe that you have been discriminated against because of any of these characteristics, you should contact an experienced Maryland employment law attorney right away to determine if your rights have been violated.

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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.  

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Workplace Discrimination

Maryland discrimination attorney Bruce Luchansky answers the question: “What should I do if I feel I have been discriminated against based on a characteristic such as race, religion, age, disability, gender, etc?”  Take 3 steps right away: (1) Check to see if you have received a policy from your employer (such as in a handbook) telling you what procedures you should follow if you believe you have been subject to discrimination;  (2) If you have received a written complaint procedure, follow it.  Keep detailed notes about the discrimination for your own records, and submit a complaint in writing to a supervisor; and (3) Contact an experienced Maryland employment lawyer, who can assess whether the actions being taken by your employer are unlawful.

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Disability Discrimination in Maryland

Maryland employment law attorney Bruce Luchanasky answers the question: “I am physically disabled, and I am looking for a job.  Can an employer deny me employment based on my disability?” Not if you can do the job, even if you need the employer to provide you with a reasonable accommodation in order to perform that job.  The laws are complicated – for example, there are federal, State, and local laws, and in most cases, they apply only to employers who have 15 or more employees.  Therefore, consulting with a Maryland disability discrimination lawyer about the details of your situation is important.  But if you can perform the essential duties of the position you are applying for, you should not be rejected on account of your disability.

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EEOC Issues Fact Sheet to Assist Employers in Applying Employment Discrimination Laws to Scenarios Involving Domestic Violence, Sexual Assault and Stalking

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based upon race, color, gender, religion or national origin.  The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability.  However, neither of these statutes—or any other federal statute—specifically prohibits discrimination against individuals who are the victims of domestic violence, sexual assault or stalking.  Nevertheless, a EEOC Guideance Article published by the Equal Employment Opportunity Commission (“EEOC”) has employers in Maryland scrambling to revise their non-discrimination policies and training materials in order to incorporate the examples listed in that publication.  The EEOC article sets forth an assortment of examples involving victims of sexual assault and domestic violence that result in potentially actionable disparate treatment, harassment and retaliation claims under Title VII and the ADA. An illustration provided by the EEOC of an employment scenario which may violate Title VII includes an employer who fires, or simply decides not to hire, a woman who was the subject of domestic violence out of a concern  for “drama battered women bring to the workplace.”   The EEOC describes this as “disparate treatment.”  Another example provided involves a supervisor who learns that a subordinate has been the subject of domestic abuse and, viewing her as vulnerable, makes sexual advances towards her.  This is prototypical illegal harassment.  And in an example involving unlawful retaliation, the Guidance describes a scenario in which a supervisor threatens not to issue a pay raise to an employee who reported the supervisor for improperly disseminating the employee’s medical information. Illustrations of circumstances which potentially violate the ADA include an employer who performs an internet search of an applicant and discovers that the applicant previously witnessed a rape and, thereafter, required psychological treatment for depression.  The employer, in turn, decides not to hire the applicant out of a concern that she will “require future time off for continuing symptoms.”  This is an example of discrimination based upon a “perceived disability,” which is in violation of the ADA.  In another example, a manager informs an employee’s colleague that the employee suffers from posttraumatic stress disorder resulting from incest.  This is a straightforward instance of violating the ADA by unlawfully disclosing confidential medical information.  The EEOC also describes a case where an employer threatens to illegally retaliate against an employee who complains about the employer improperly disseminating her medical information. Finally, in a scenario which most employers would not immediately recognize as a violation of the ADA, the EEOC describes a situation where an employee does not have any accrued sick leave and is not eligible for leave pursuant to the Family Medical Leave Act (“FMLA”), yet proceeds to request leave from work in order to receive professional treatment for depression resulting from sexual assault.  When the employer refuses to grant the leave on the basis that the company “applies leave and attendance policies the same way to all employees,” the EEOC declares that the employer acted in violation of the ADA by failing to provide the employee with a reasonable accommodation. Here are the takeaways for Maryland businesses from the EEOC’s recent publication:  Employers should carefully review the issues addressed in the EEOC’s article and consider adding them to their anti-discrimination and non-harassment policies and training seminars. Employers must recognize that scenarios involving both employees and applicants for employment that involve domestic violence, sexual assault and stalking create unique situations to which the legal protections of various anti-discrimination laws may apply, requiring employers to approach these cases with particular sensitivity to legal compliance. While EEOC guidance does not constitute legal authority, it nevertheless provides awareness as to how the EEOC interprets applicable statutes, in this case Title VII and the ADA.  Employers must be aware that other federal laws, such as the FMLA, may also apply to employees and applicants who are the victims of sexual assault, domestic violence or stalking.  Employers should consult with their legal counsel to ensure that they are in compliance with all Federal laws, as well as all applicable State and local laws as well.  Maryland employers or employees who have any additional questions about Title VII, the ADA, FMLA or any other issues that might arise in the workplace are welcome to contact attorney Judd G. Millman.  Mr. Millman is licensed to practice law in both Maryland and Texas, and his practice focuses exclusively on employment law.  He regularly counsels both employees and employers on the myriad of legal issues which arise in the workplace.  He can be reached directly at (410) 522-1020, or at judd@luchanskylaw.com.  

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