©2026 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2026 EDITION | 32 actual features of the purportedly problematic AI tools. The case is moving into the discovery phase, which will provide Workday with an opportunity to flesh out the mechanisms of its AI tools and establish that the companies deploying Workday control the deployment and use of the AI tools, not Workday. The district court has also outlined the process to be followed to provide notice to members of the putative collective. Plaintiffs intend to disseminate notice via Facebook, Instagram, LinkedIn, Google Search & Display, and X. The court did not entertain Defendants objections to this approach in its tentative ruling. However, plaintiffs’ approach could draw large amounts of negative attention to Workday’s AI tools and increase skepticism around the use of AI tools in the hiring process, generally. Employers, HR vendors and service providers, and AI developers should take note because even though the allegations in the amended complaint may not reflect the reality of how most employers are using AI in hiring, the court’s decision to conditionally certify the collective is likely to embolden plaintiffs to pursue similar claims. Against this backdrop, employers should be mindful that any charge of intentional discrimination filed with the EEOC that mentions the use of artificial intelligence – or any other technology in hiring – will not only qualify for priority handling, but is also likely to receive additional scrutiny from EEOC management. Conversely, employers need not worry about the EEOC advancing disparate impact claims that mention the use of technology in hiring. However, the EEOC’s shift in enforcement priorities does not insulate employers from disparate impact claims brought by private plaintiffs. Employers should also be mindful of state and local employment laws that recognize disparate impact liability. 2. Other Technology in Hiring and the Path Ahead on AI Importantly, the EEOC signaled that it is focusing on all uses of technology in recruitment and hiring, not just artificial intelligence. In August 2023, the EEOC entered into a settlement agreement with iTutorGroup, which many media reports and commenters characterized as the EEOC’s “first ever” case involving artificial intelligence discrimination in hiring. However, according to the EEOC’s complaint, the underlying hiring technology simply asked job applicants for their date of birth and was configured to automatically reject female applicants aged 55 or older and male applicants aged 60 or older. To be clear, automatically rejecting older job applicants, when their birthdates are already known, does not require any sort of artificial intelligence or machine learning.75 That said, it is entirely fair to say that the EEOC’s iTutorGroup complaint and settlement, as well as the way the commission has characterized the lawsuit and settlement, squarely falls within the broader scope of the EEOC’s greater scrutiny of all sorts of technology in hiring, even technology that does not involve artificial intelligence. The EEOC’s commitment to enforcement in the area of AI and other technology in hiring serves as a strong reminder that employers should be prepared to defend their use of technology in hiring, whether or not it might fall into any particular legal definition of “artificial intelligence.” In response to EEOC charges alleging that the use of AI or other technology is discriminatory, employers should be prepared to explain to EEOC investigators what AI or other technology they have been using in hiring or sourcing processes, and produce evidence that their processes are free of unlawful disparate impact against protected groups. Also, if employers have not already had conversations with their AI vendors or in-house developers about the likelihood of scrutiny of these processes in enforcement actions or litigation, in certain circumstance it could be an opportune time to take a deeper look at how technology is being used in their own organization. In addition to conducting documented bias audits, companies should ensure its training reminds employees that technology usage must comply with federal and state 75 https://www.seyfarth.com/news-insights/eeocs-settlement-challenging-simple-algorithm-provides-warning-for-employers-using-artificialintelligence.html
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