Derek Mobley applied to over one hundred job postings using Workday’s artificial intelligence (AI) screening algorithms. Despite his extensive qualifications, employers rejected Mobley’s application. He later discovered that the AI algorithms used by Workday may be systematically screening out applications based on their race, age, and disability—characteristics explicitly protected under Title VII of the Civil Rights Act of 1964. Recognizing the gravity of algorithmic discrimination, Mobley and similarly situated applicants brought claims against Workday as an “agent of the employer” in violation of federal antidiscrimination laws.

Third-party vendors, who market and sell their software to employers interested in using these tools for their talent acquisition processes, claim that they are not agents of the employer as they do not take on traditional hiring functions. Instead, the argument is that as independent contractors, their conduct falls outside of the parameters of Title VII. In turn, even if a third-party vendor were considered an agent, liability would still not attach, as the doctrine of respondeat superior holds only the employer liable for the actions of its agents. Given the array of ambiguities in the statute, the district court in Mobley v. Workday interpreted agent to establish independent liability for AI third-party vendors in accordance with the plain language of Title VII. Congress could not have intended companies like Workday to escape liability entirely for discrimination online which would be otherwise prohibited under Title VII offline. Therefore, the Mobley court’s approach must be correct. If Congress does not seal the hatch, aggrieved plaintiffs will have no legal recourse against third-party vendors who embed discrimination into their programs.