Google’s rationale for dismissal request not accepted by DOL ALJ
Google based its claim that statements made to the press by Janet Herold, OFCCP Regional Solicitor, indicated that the agency had completed its investigation. ALJ Steven Berlin thought that these statements were ill-advised but did not carry as much weight as hearing testimony.
During the expedited hearing on April 7, 2017, Janet Herold, one of the attorney’s on the case, answered questions from a reporter at the Guardian. The same day, the Guardian published an article which included Herold’s comments, a statement from Google, and excerpts from the hearing testimony of Regional Director, Janette Wipper. Wipper was quoted as testifying that the OFCCP “found systemic compensation disparities against women pretty much across the entire [Google headquarters] workforce” and that the agency wants to “understand what’s causing the disparity.” Wipper was also paraphrased as saying that the agency found pay disparities in a 2015 snapshot of salaries and said that officials needed earlier compensation data to evaluate the root of the problem.
Herold was quoted as saying “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters. The government’s analysis at this point indicates that discrimination against women is Google is quite extreme, even in this industry.” Herold was further quoted as saying “additional information to ensure the accuracy of the department’s findings, because if the findings are confirmed, this is a troubling situation.”
Google asserted that the OFCCP was demanding extensive additional information not to complete an investigation because it had already been completed. OFCCP argued that nothing in Herold’s statements showed that the agency’s investigation was done.
However, the ALJ wrote that “from these statements, it may be inferred that the government wants it both ways.” “[T]he investigation is still ongoing with no final conclusions reached and no discovery rules to limit further demands for information, and yet the Department can announce findings of discrimination to the press. The Department does this, while keeping Google in the dark about what its analytical process has been and what exactly its findings are. It asserts that it is entitled to do this because Google is not entitled to information about OFCCP’s process until OFCCP finishes the compliance review, and that Google is not entitled to discovery until and unless OFCCP files litigation on the merits.” He further points out that “If OFCCP has reached that level of confidence; it is difficult to understand why OFCCP needs further investigation to complete the compliance review.”
To help the ALJ resolve this inconsistency, he relied on Wipper’s testimony since it was extensive and detailed, given under oath and held up to cross-examination. For more information about the case, read our previous blog.