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Companies accused of workplace discrimination in Labor Department audits and enforcement actions often criticize an alleged lack of transparency in how the government reaches those conclusions.
Oracle America recently won an administrative ruling in its ongoing pay and hiring bias dispute with the government that could help shed light on the process and push the government to share the statistical information it uses to assert discrimination violations, attorneys and consultants told Bloomberg Law. None are involved in the Oracle case.
The order “will certainly be helpful in future administrative cases where there are discovery disputes” between the DOL’s Office of Federal Contract Compliance Programs and government contractors, Leigh Nason told Bloomberg Law. She is an attorney with Ogletree Deakins in Columbia, S.C., and chair of the firm’s Affirmative Action/OFCCP Compliance Practice Group.
It also “could potentially help persuade OFCCP to be more transparent pre-litigation,” Nason said. “We can only hope.”
Apart from Oracle, the agency also has pending administrative actions alleging discrimination against JPMorgan Chase & Co., JBS USA, Analogic Corp., Enterprise Rent-A-Car of Baltimore, and about half a dozen other government contractors.
The government’s contractor watchdog in January filed an administrative complaint against Oracle, alleging that an audit of its California headquarters revealed “gross” statistical pay disparities against women, blacks, and Asians in “three lines of business.” The office, which reviews federal contractors for workplace affirmative action and nondiscrimination compliance, also alleged the company statistically favored Asian applicants for certain jobs.
Oracle at the time strongly denied the allegations, calling them “politically motivated, based on false allegations, and wholly without merit.”
In September, a DOL administrative law judge ordered the OFCCP to provide to Oracle documents and information that support specific allegations in its complaint, including statistical analyses of employment data and anecdotal evidence that pointed to discrimination. The order recently appeared on a department website that provides proactive disclosures of frequently requested records under the Freedom of Information Act. The site also includes documents related to the OFCCP’s current pay data access lawsuit against Google.
“To have an order where OFCCP is being asked to divulge the factual basis for its legal conclusions, frankly, is really welcome,” Alissa Horvitz, a management attorney with Roffman Horvitz in McLean, Va., told Bloomberg Law. Horvitz previously served as co-chair of Littler Mendelson’s OFCCP practice group.
Contractor representatives have repeatedly raised concerns about what they view as the agency’s unwillingness to share the underlying statistics that lead it to issue a violations notice or an administrative complaint against a company.
“The agency will claim that these analyses are privileged and that the contractor doesn’t have the right to see them,” David Cohen, president of DCI Consulting in Washington, told Bloomberg Law. “The message now to OFCCP is: ‘You’re a federal enforcement agency. If you’re alleging discrimination, at some point you’re going to have to show your cards and the contractor has a right to see your cards.”
Labor Department and Oracle representatives declined to comment on the order.
However, a DOL spokesman previously told Bloomberg Law that the agency “is aware that there is a strong desire for consistency and increased transparency in compliance evaluations” and that both “can reduce the amount of time that it takes to resolve cases, and the number of cases that end up in litigation.”
The order’s impact on future enforcement actions is not certain. There are differences in how some administrative law judges approach discovery issues.
Additionally, a judge can be overturned by the DOL’s Administrative Review Board.
“Until the Administrative Review Board weighs in, which it usually does not in discovery disputes, another judge may hold differently on similar disputes,” Nason said.
Whether the order will have an effect on the agency’s proactive transparency during audits is another question.
“I don’t see much immediate effects on audits, except for conciliation efforts, when OFCCP tries to hide the ball on its facts and evidence,” Nason said, referring to the process during which the agency and a contractor try to settle allegations of discrimination or other technical violations prior to administrative action.
Horvitz noted that a new political director at the agency, as well as a Trump-appointed labor solicitor, will likely have more of an impact than a discovery order on making audits more transparent and collaborative.
“It’ll trickle down from there,” she said.
It’s unclear when the Trump administration will appoint a new OFCCP director. The Senate also hasn’t yet scheduled a confirmation hearing for Trump’s labor solicitor pick.
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The administrative law judge's order is available at http://src.bna.com/tSF.
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