A court just ruled Workday's AI bias-testing data is privileged. Worth knowing if you use AI screening tools.

There was a discovery order in the Workday AI hiring lawsuit (Mobley v. Workday) a few weeks ago that deserves more attention than it's getting.

Applicants over 40 are suing Workday claiming its screening tools discriminated against them. The case is proceeding on the theory that Workday acts as an agent of its client employers when its tools screen candidates.

The new order decided three things. Workday's internal bias-testing data is protected by attorney-client privilege because the testing was curated by their lawyers and used to provide legal advice, so plaintiffs can't get it. Workday doesn't have to hand over its customers' applicant data, because plaintiffs didn't show Workday controls that data, so they have to subpoena each employer directly. And Workday does have to produce its own EEO-1 and OFCCP filings, which the court found relevant to what Workday knew about demographic disparities.

The interesting part is the asymmetry. If the vendor's bias testing is privileged, an employer being sued over the same tool may not be able to use it in their defense either. Meanwhile the employer's own applicant data and hiring outcomes stay fully discoverable.

Note that this is one judge's discovery order, not binding precedent.

Curious whether anyone has seen this come up in vendor conversations yet, or whether it's still only living on legal blogs.

You can read the order here: https://blogs.duanemorris.com/classactiondefense/wp-content/uploads/sites/56/2026/06/2026.05.29-Privilege-Bias-Test-Ruling.pdf

I also wrote my own longer take on what it means for choosing AI tools in hiring: https://blog.mccoy.io/workday-ruling-ai-screener-audit