Judge chides DOL for 'troubling' behavior in Oracle suit, but allows amended complaint
Update: March 12, 2019: A U.S. Department of Labor administrative law judge (ALJ) has chided the agency for the "troubling" manner in which it pursued claims against Oracle. It participated in mediation for almost a year "while it was concurrently sharpening and revising its claims," the ALJ said. But those missteps weren't necessarily in bad faith, as Oracle has argued, he said, allowing the department's Office of Federal Contract Compliance Programs to amend its original complaint and directing the parties to "behave in a professional, courteous manner and avoid unnecessary and contentious litigation strategies that are often mistaken for zealous advocacy."
DOL updated three claims regarding Oracle's alleged discriminatory compensation practices and it added three claims, as well. It alleged that Oracle hires and assigns women to lower-paid jobs or "assigns them to lower global career levels than men"; that it hires and assigns African Americans for lower-paid jobs than other men; and that it hires and assigns Asians for lower-paid jobs or assigns them to lower global career levels than their white counterparts. It also adjusted another claim, saying that Oracle's hiring and recruiting processes — not just its hiring practices, as it alleged before — disproportionately favor workers from India.
- Oracle's discriminatory practices cost black, Asian and female employees $400 million in lost wages over a roughly four-year period, the U.S. Department of Labor (DOL) alleged in an updated complaint. The new allegations add more information to the claims DOL made in its original 2017 lawsuit, which it filed after an investigation that began in 2014.
- In its complaint, DOL alleged that Oracle, a tech company, created two "potential pathways" for discrimination: first, it based employee's initial pay rates on prior salary; second, it channeled these employees into less lucrative career paths. DOL also found Oracle to be "highly discriminatory" in its college and university hiring practices. Between 2013 and 2016, Oracle hired 500 recent graduates, and 450 (90%) of them were Asian even though Asians make up only 65% of that hiring pool. Oracle also demonstrated a preference for Asian visa-holders. "This preference for a workforce that is dependent on Oracle for authorization to work in the United States lends itself to suppression of that workforce's wages," DOL said. Oracle destroyed records related to its hiring procedures as the case unfolded, according to the complaint.
- Oracle receives more than $100 million in public money from federal contracts every year, DOL said. In its original complaint, DOL requested "an order canceling all of Oracle's federal government contracts and subcontracts."
The tech industry has been on the receiving end of an array of complaints alleging Title VII of the Civil Rights Act of 1964 violations in recent years. Google, Spotify, Uber and other tech giants have all faced discrimination claims; Women at Microsoft, for example, filed 238 internal complaints against the company between 2010 and 2016, alleging gender discrimination and sexual harassment. Of those complaints, 118 spoke of gender discrimination. Similarly, female employees sued Oracle for pay discrimination after the DOL had already begun its investigation.
It may not come as a shock, then, that more than 70% of tech employees said they don't trust HR, according to a 2018 survey from Blind, the anonymous workplace app. To earn workers' trust, HR will need to ensure it addresses each complaint and responds appropriately, sometimes launching a good-faith investigation to resolve more serious situations. Google made itself an example of this when it changed its disability accommodation policy after employees challenged it in November.
Of course, complaints can sometimes signal the need for a cultural overhaul, a transition at which HR often finds itself at the helm. HR Dive recognized Katee Van Horn, former VP of global engagement and inclusion at GoDaddy, as its 2017 Executive of the Year after she helped carve a destination employer for women out of a company once known for risque television commercials. As GoDaddy demonstrated, change is possible for the tech industry.
Others, like Adobe and Salesforce, are banking on equal pay initiatives. Adobe announced it reached pay equity along gender and racial lines in the U.S. in 2017. Salesforce, meanwhile, paid two installments of $3 million to correct for pay disparities among its workforce after it conducted an equal pay assessment in 2015. Pay assessments can be a powerful tool for employers looking to correct course on pay equity. Attorneys have advised employers to review pay practices, make a plan and assess the magnitude of pay differences to determine if they're significant.
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