(Derek Mobley v. Workday, Inc., No. 23-770, N.D. Calif.)
(Opinion available. Document #46-250604-041Z.)
Derek Mobley filed a charge of discrimination in June 2021 with the Equal Employment Opportunity Commission, which issued a dismissal in November 2022. Mobley then filed a class action against Workday on Feb. 21, 2023, claiming that starting in 2018, he applied to 80 to 100 positions at various companies that use Workday’s algorithmic screening tool. Mobley is an African-American who suffers from anxiety and depression. He has a degree in finance from Morehouse College and an associate’s degree in network systems administration. He says he was denied each position. Mobley claims that Workday engages in a pattern of rejecting African-American applicants older than 40 and those with disabilities.
“Defendant Workday, Inc.’s artificial intelligence (AI) systems and screening tools rely on algorithms and inputs created by humans who often have built-in motivations, conscious and unconscious, to discriminate. Defendant Workday, Inc. unlawfully offers an algorithm-based applicant screening system that determines whether an employer should accept or reject an application for employment based on the individual’s race, age, and or disability,” Mobley alleges in his suit filed in the U.S. District Court for the Northern District of California.
Discrimination
After the complaint was dismissed for failure to state a claim, Mobley filed an amended complaint on Feb. 20, 2024, alleging claims for intentional employment discrimination and disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., intentional age discrimination and disparate age discrimination in violation of the ADEA, 29 U.S.C. § 621 et seq., intentional discrimination under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and aiding and abetting race, disability and age discrimination under the Fair Housing Employment and Housing Act, California Government Code Section 12940(I), Cal. Gov. Code § 12940(I).
Jill E. Hughes, Vanessa Knight-Bell, Sheilah Johnson-Rocha and Richard W. Lieb Jr. were added to the action as opt-in plaintiffs. On Feb. 6, 2025, Mobley moved for conditional certification of the following class: “All individuals aged 40 and over who, from September 24, 2020, through the present applied for job opportunities using Workday, Inc.’s job application platform and were denied employment recommendations.” Workday filed its opposition on March 6.
In granting preliminarily collective certification, Judge Rita F. Lin said Mobley adequately alleged that Workday’s use of AI to “score, sort, rank, or screen applicants” showed the presence of a unified policy.
Alike
“The critical issue at the heart of Mobley’s claim is whether that system has a disparate impact on applicants over forty. That issue is susceptible to common proof — it cuts across the proposed collective, regardless of the degree to which particular employers place weight on those recommendations, the extent to which the system makes discriminatory recommendations across different employers, or the natural variations in the qualifications or rejection rate for particular members of the proposed collective,” Judge Lin said.
It also does not matter that all members of the proposed collective are not identical because they are “alike in the central way that matters,” Judge Lin said.
To the extent that Workday is correct that there might be difficulties in identifying the collective members, that alone is not a reason to deny certification, and in any case, the hurdles do not appear insurmountable, Judge Lin said. To the extent that the collective potentially includes hundreds of millions of members, that is the result of Workday’s own alleged discrimination. “Allegedly widespread discrimination is not a basis for denying notice,” Judge Lin said.
Judge Lin said Workday’s contention that it does not reject applicants is contrary to Mobley’s allegations. Further, it is possible that if Workday gave an applicant a low score it could qualify as a recommendation that the employer not hire that applicant. The remaining questions about how strongly Workday’s recommendations weigh in favor of or against hiring a candidate do not prevent a collective action, Judge Lin said.
Unified Policy
“Workday’s argument that certain of its AI features could vary in their impact across different employers does not defeat the existence of common issues either. In nearly every large disparate impact case, certain units of the whole — for example, regions of a national company or divisions of an organization — will demonstrate the effects of a unified discriminatory policy to a greater or lesser extent than others, or may demonstrate no discriminatory effect at all. But where a unified policy exists and the net disparate impact of that unified policy can be proven through statistical evidence, such unit-level differences do not defeat the prima facie discrimination case. The case remains subject to collective proof,” Judge Lin said.
Judge Lin said that to the extent that Workday intends to argue that any discrimination is the result of the employers and not itself, that does not defeat certification at this stage. Those questions go to common proof more suited to the analysis at the second stage. Likewise, at this stage Mobley does not need to show that every member of the proposed collective is identical. It is possible that Mobley will eventually be unable to show disparate impact for all the reasons Workday suggests. But that is an issue for the future, Judge Lin said.
Nor does each member of the proposed collective need to have applied to a high number of jobs for which they were qualified, Judge Lin said. This case involves disparate impact, not disparate treatment. And while an applicant’s qualifications might ultimately impact the ability to recover damages, that does not weigh on standing to pursue a claim, Judge Lin said.
Counsel
Mobley is represented by Lee D. Winston and Roderick T. Cooks of Winston Cooks LLC in Birmingham, Ala., Jay Green of Green Estate, Probate and Elder Law Firm in San Francisco and Robert L. Wiggins Jr. of Wiggins, Childs, Pantazis, Fisher & Goldfarb LLC in Birmingham.
Workday is represented by Julie A. Totten, Erin M. Connell, Kayla D. Grundy and Alexandria R. Elliott of Orrick, Herrington & Sutcliffe LLP in San Francisco and Justin M. Washington of the firm’s Los Angeles office.
(Additional documents available: Mobley’s motion for conditional certification with attachments. Document #46-250305-014B. Workday’s opposition. Document #46-250402-004B. Mobley’s reply. Document #46-250604-040B. Mobley’s amended complaint. Document #46-240403-006C.)