August 16, 2024
The opacity of workplace artificial intelligence tools poses a daunting challenge for plaintiff-side employment lawyers who think that technology causes discriminatory results.
Though the inner workings of AI systems remain difficult to access, lawyers say they’re bringing discrimination charges based on publicly available information. They’re suing the vendors of the tools directly, rather than the employers that use them, and they’re applying existing law in new ways.
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Christine Webber, co-chair of Cohen Milstein’s civil rights and employment practice, also said she’d prefer to sue vendors directly — she framed it as going straight to the source of the discrimination.
“My goal has always been to go after the vendors first. Here’s my theory why. Because any given vendor has dozens, hundreds of customers,” she said. “Let me sue the vendor once and deal with all of it instead of having to sue 100 different employers to accomplish the same thing.”
Another benefit of suing vendors directly is that it could help boost plaintiffs’ access to information that might otherwise be sealed off, Webber pointed out.
In the Workday case, because Workday is a direct defendant and the judge has found they can be held liable under the law, Workday may have a harder time keeping the details of its algorithms under seal by claiming they’re trade secrets.
“It’s going to be a lot harder for them to say, ‘Oh, trade secret, we shouldn’t have to disclose it,'” so as not to be at a disadvantage to competitors, she said. “Obviously, the plaintiffs in the case are not a competitor. I don’t really see what the basis would be for denying that sort of discovery.”
Read How The Plaintiffs Bar Is Getting Creative To Combat AI Bias.