The Black Box 011: Four Words Congress Left Out of the Age Law

Bot Mutiny | October 9, 2026

Four words in Title VII are missing from the federal age law. On October 1, a federal judge in Alabama applied that gap to a manager's keyword screen, and dismissed the age-impact claim with prejudice.

The Black Box 011: Four Words Congress Left Out of the Age Law

Four words in Title VII are missing from the federal age law. On October 1, a federal judge in Alabama applied that gap to a manager's keyword screen, and dismissed the age-impact claim with prejudice.

October 09, 2026

The rejection email

Sometime in the 180 days before February 2024, Vanessa Knight-Bell applied for a Customer Experience Analyst job with Assurant, the insurance company. The rejection arrived by email from an address ending in myworkday.com.

That return address was most of what she had to go on. In the discrimination charge her lawyers filed with the Equal Employment Opportunity Commission on February 4, 2024, they wrote, on information and belief, that her application had been screened by artificial intelligence supplied by Workday, Inc. Knight-Bell is African-American and over forty. The charge named Assurant and Workday and alleged race and age discrimination.

Assurant answered the EEOC in a position statement dated April 23, 2024. It denied using artificial intelligence or machine learning in its hiring. It said the job had drawn hundreds of applications, and that its Talent Acquisition Manager first searched the applications and résumés for certain key skills and terms before anyone reviewed them by hand. It said it did not know her race or her age when it turned her down.

By the employer's own account, then, the screen was a person typing search terms into a software platform. When Knight-Bell sued in the U.S. District Court for the Northern District of Alabama on April 22, 2026, her complaint dropped Workday and dropped the AI theory. It does not mention Workday, and it does not allege that artificial intelligence or machine learning played any part in her rejection. It challenged the keyword search.

The ruling

On October 1, 2026, Judge Harold D. Mooty III granted most of Assurant's motion to dismiss. Almost everything he dismissed can be refiled. Knight-Bell has until October 22 to ask for leave to amend.

One piece cannot come back. Her claim that the keyword screen had a disparate impact on applicants over forty was dismissed with prejudice. The judge did not find the claim weakly pleaded. He found that, in the Eleventh Circuit, a job applicant does not have it.

More than two years earlier, a federal judge in San Francisco reached the opposite conclusion on the same question, in a case against Workday that a court has since preliminarily certified as a nationwide collective of applicants aged 40 and over.

What the statute actually says

The Age Discrimination in Employment Act has two clauses that matter here, both in 29 U.S.C. § 623(a).

Section 623(a)(1) makes it unlawful for an employer to fail or refuse to hire any individual because of age. That is the intent clause. A plaintiff has to show that age was the reason.

Section 623(a)(2) makes it unlawful for an employer to limit, segregate, or classify "his employees" in a way that would deprive any individual of employment opportunities or "otherwise adversely affect his status as an employee." The Knight-Bell order calls this the ADEA's disparate-impact provision. Disparate impact is the theory that lets a plaintiff challenge a neutral practice by its results, without proving anyone meant to discriminate.

Now set the matching clause of Title VII of the Civil Rights Act beside it. 42 U.S.C. § 2000e-2(a)(2) uses nearly identical language, with one difference. It covers "his employees or applicants for employment."

The difference is four words, and the age law does not have them.

In 2016, the full Eleventh Circuit decided what that gap means. Richard Villarreal was 49 when he applied for a job with R.J. Reynolds Tobacco in 2007. According to the en banc opinion, the résumé-review guidelines used to screen applicants described the target candidate as two to three years out of college and told screeners to stay away from applicants who had been in sales for eight to ten years. The court, in a majority opinion by Judge William Pryor, held that "an applicant for employment cannot sue an employer for disparate impact." The reason was the phrase "status as an employee": an applicant has none. Judge Robin Rosenbaum, in a separate opinion agreeing on this point, noted that Congress amended Title VII in 1972 to add applicants to its version of the clause and never made the same change to the ADEA. Judge Beverly Martin, joined by Judges Wilson and Jill Pryor, dissented, arguing that the clause's reference to "any individual" should be read to include applicants.

The Seventh Circuit, sitting en banc, followed in January 2019. Dale Kleber was 58 when he applied for an in-house lawyer position at CareFusion that asked for three to seven years of relevant legal experience, and no more than seven. The company hired a 29-year-old. Judge Scudder wrote for the majority: "Congress authorized only employees to bring disparate impact claims." The Supreme Court declined to hear Kleber's appeal on October 7, 2019.

The Eleventh Circuit covers Alabama, Florida, and Georgia. The Seventh covers Illinois, Indiana, and Wisconsin. In those six states, an outside applicant cannot bring an ADEA claim that a screening practice falls harder on older people. Judge Mooty's order says so in one paragraph and notes that Knight-Bell's own lawyers conceded Villarreal controls and preserved the issue for further review.

The case for reading this as routine

The boring interpretation deserves its full weight, and it is strong.

First, the Villarreal and Kleber majorities did ordinary textual work. Section 623(a)(2) talks about employees and their status as employees. Title VII shows Congress knew how to write "applicants for employment" when it wanted to, and it did so for Title VII's protected traits in 1972 and left the age statute alone. A court that read applicants into the ADEA would be adding words Congress declined to add.

Second, applicants are not left with nothing. Section 623(a)(1) still covers refusals to hire because of age. Judge Mooty dismissed Knight-Bell's age-intent theory without prejudice, which means she can try again with better facts.

Third, Knight-Bell's case had problems that had nothing to do with Villarreal. Her Title VII race-impact claim, which applicants plainly can bring, was dismissed too, because the complaint did not plead any facts showing the keyword screen excluded Black applicants at a higher rate. Claims based on twenty of her twenty-one applications were dismissed because her EEOC charge described only one. An age-impact claim pleaded the same way would likely have failed for the same reason. On this reading, the with-prejudice ruling changed little about this particular lawsuit.

All of that is correct as far as it goes.

Why the bar still matters

The problem is what kind of claim a screen produces. Several features of the order, and of the circuit rule it applies, point the same direction.

The intent claim requires someone who knows the applicant's age. Judge Mooty wrote that intentional discrimination presupposes a decisionmaker aware of the protected trait. Knight-Bell's complaint acknowledged that Assurant does not ask applicants for age or date of birth. Her theory was that keyword choices and the employment dates on a résumé track age even when nobody looks for it. The judge classified exactly those allegations as disparate-impact allegations, not evidence of intent. A filter that correlates with age without anyone choosing age is, by design, an impact problem. In six states, older applicants cannot bring that claim under federal age law.

The same screen gets two different answers depending on the trait. In the same order, the race-impact count was dismissed without prejudice, with instructions on what an amended complaint would need. The age-impact count was dismissed with prejudice. The practice is identical. The difference is the four words.

Villarreal's own facts were a stated preference for recent graduates. If a written instruction to avoid applicants with long sales careers cannot be challenged by its effect on applicants, a list of search terms cannot be either.

The courts are not aligned. In Mobley v. Workday in the Northern District of California, Workday raised Kleber and Villarreal for the first time at a May 2024 hearing. In a July 12, 2024 order, Judge Rita F. Lin held the argument waived and added, in a footnote, that job applicants may bring disparate-impact claims under the ADEA, following a 2017 ruling from the same district, Rabin v. PricewaterhouseCoopers. Workday pressed the point again. On March 6, 2026, Judge Lin rejected it and denied the motion to dismiss the ADEA claim. HR Dive's Ryan Golden reported the same holding.

In between, on May 16, 2025, Judge Lin granted preliminary certification of a collective of all individuals aged 40 and over who, from September 24, 2020 onward, applied for jobs through Workday's platform and were denied employment recommendations. The order records Workday's own figure for that period: "1.1 billion applications were rejected using Workday."

Workday offered the figure in a brief opposing notice to the collective. It counts all applications rejected through the platform in that period, at any age. Judge Lin noted that it ignores the qualifiers in the collective's definition, which will narrow it. It is not a finding of discrimination and it is not a count of collective members. It is an upper bound on the pool the theory could reach in California.

The Ninth Circuit itself has not ruled on the applicant question in any order or reporting read for this piece. What exists in California is a district judge's reading, reaffirmed twice. What exists in Alabama is binding appellate precedent.

The named parties

Assurant's position statement is the most specific account of the screen in the record, and the court did not accept it as true. Judge Mooty considered the document because the complaint relied on it, but declined to credit Assurant's contested assertions, including that no automation was involved and that the person hired identifies as two or more races and is over forty. The position statement itself says it is not intended as evidence.

Workday is not a party in Alabama. In California, it is the defendant, sued on the theory that its customers delegated the job of rejecting applicants to its software. Judge Lin's 2024 order accepted that theory at the pleading stage, reasoning that treating software decisionmakers differently from human ones "would potentially gut anti-discrimination laws in the modern era." The same order drew a limit. If an employer used a spreadsheet to sort applicants by birthdate and filter out everyone over forty, the spreadsheet vendor would not be the employer's agent, because the spreadsheet is not taking part in the decision.

Knight-Bell's case, as pleaded, sits closer to the spreadsheet. The complaint alleged a manager's search terms run through the platform. It does not name Workday at all.

Workday told HR Dive that its products, AI-enabled or not, are "built to help our customers manage an ever-increasing volume of applicants," with a focus on human decision-making, and that its AI recruiting tools are not trained to use or identify protected characteristics such as age.

One detail connects the two cases, and it is thin. In a footnote, Judge Mooty notes that Assurant asserted Knight-Bell is a party to the pending Workday litigation in California. The judge said the assertion was outside the pleadings and played no role in his analysis. This piece has not confirmed it.

What the applicant cannot see

Judge Mooty dismissed the race-impact claim because the complaint never identified a single term the Talent Acquisition Manager searched for. Without the terms, there was nothing from which a court could infer that the screen excluded one group more than another. Knight-Bell argued that the pass-through data sits with Assurant and that discovery would produce it. The judge acknowledged the informational asymmetry and held that the pleading rules do not open discovery to a plaintiff with only conclusions.

That is the position of almost every rejected applicant. The rejection email arrives from a no-reply address on a vendor's domain. It does not say whether a model, a keyword list, or a person made the call. Knight-Bell's charge guessed artificial intelligence. Assurant says the guess was wrong, and the court did not decide the point. Her complaint relied on academic literature about machine-learning bias, and the judge set it aside because it described a different mechanism. "There is no training data and no model," he wrote.

For an applicant over forty in Alabama, Florida, Georgia, Illinois, Indiana, or Wisconsin, the circuit rule removes the one federal age claim that does not require proving what someone was thinking. The claim that remains needs evidence about the screen, and the evidence about the screen is held by the employer.

The tell

The parties in both cases treat the missing words as the issue.

In Mobley, Workday argued that recent unsuccessful attempts in Congress to amend § 623(a)(2) show that Congress meant to leave applicants out. Judge Lin answered with a line from the Supreme Court's Bostock decision, that speculation about why a later Congress declined to pass a bill is a particularly dangerous basis for interpreting a statute. Workday's argument confirms that the fix has been proposed and has not passed. This piece did not read the bills themselves.

According to an essay published in September in the Stanford Law Review Online, Workday moved in March 2026 to take the question to the Ninth Circuit before trial (ECF No. 286). The ruling on that motion was not among the documents read for this piece.

And in Alabama, Knight-Bell's lawyers did not argue that Villarreal was wrong for this case. They conceded it controlled and preserved the issue, which keeps the argument alive for a court with the power to overrule Villarreal. A district judge in Alabama has no such power.

The record, stated cleanly

What the documents establish:

On October 1, 2026, Judge Harold D. Mooty III dismissed Knight-Bell's ADEA disparate-impact theory with prejudice under Villarreal, and dismissed her other claims without prejudice, with an October 22 deadline to seek leave to amend.
Knight-Bell's EEOC charge attributed her rejection to Workday's AI. Assurant's position statement denied using AI and described a manager's keyword search. The complaint pleaded the keyword search and did not mention Workday.
The ADEA's § 623(a)(2) refers to "his employees." Title VII's § 2000e-2(a)(2) refers to "his employees or applicants for employment."
The en banc Eleventh Circuit (2016) and en banc Seventh Circuit (2019) held that applicants cannot bring ADEA disparate-impact claims. The Supreme Court denied review in Kleber.
Judge Rita F. Lin in the Northern District of California held in July 2024 and again in March 2026 that applicants can bring those claims, and in May 2025 preliminarily certified a nationwide ADEA collective of Workday applicants aged 40 and over.

What the documents do not establish:

That Assurant's keyword screen, or Workday's tools, discriminated against anyone by age or race. No court has found that.
That Assurant used AI in screening Knight-Bell. Her charge alleged it on information and belief; Assurant denied it; her complaint abandoned it.
That Knight-Bell is a member of the Mobley collective. Only Assurant asserted this, and the court did not rely on it.
That the Ninth Circuit agrees with Judge Lin, or how circuits other than the Seventh and Eleventh treat the question.
How many people opted into the Mobley collective, or whether Workday's request for an early appeal was granted.
Whether Knight-Bell will amend, and whether any amended age claim will survive.

Close

Most of the public argument over AI hiring tools is about whether software can be biased. The Knight-Bell file is a reminder that, in six states, the answer would not change the result for an older applicant suing the employer over outcomes. That claim was closed by the en banc courts years ago, over four words Congress never added to the statute, and it is closed the same way whether the screen is a model or a manager with a search box.

Sources: Knight-Bell v. Assurant, Inc., No. 5:26-cv-670-HDM (N.D. Ala.), Doc. 19, Memorandum Opinion and Order (Oct. 1, 2026). Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc). Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc); Supreme Court docket No. 18-1346. 29 U.S.C. § 623(a); 42 U.S.C. § 2000e-2(a). Mobley v. Workday, Inc., No. 3:23-cv-00770-RFL (N.D. Cal.): Order Granting in Part and Denying in Part Motion to Dismiss (July 12, 2024); Order Granting Preliminary Collective Certification (May 16, 2025); Order Granting Motion for Leave to File Amicus Brief and Granting in Part and Denying in Part Motion to Dismiss and to Strike, ECF No. 267 (Mar. 6, 2026). HR Dive, Ryan Golden (Mar. 9, 2026, updated Mar. 30, 2026). Stanford Law Review Online, vol. 79 (Sept. 2026).

Not read for this piece: the Knight-Bell complaint (Doc. 1), Assurant's motion to dismiss (Doc. 10) and the briefs (Docs. 15, 18), which are described here only as the October 1 order describes them; Rabin v. PricewaterhouseCoopers; the Mobley June 22, 2026 order (ECF No. 360), known here only through a Duane Morris summary; Workday's interlocutory-appeal motion and any ruling on it; the congressional bills to amend § 623(a)(2); California SB 947.