SAN FRANCISCO — In a withering decision, a federal judge attacked the federal government’s gender-discrimination probe against Google, calling the U.S. Department of Labor’s theory in the case “little more than speculation.”
But the Labor Department nevertheless declared victory, saying the judge’s order will give it access to the data it needs to continue investigating “really damning” indications that Google paid women less than men across the entire company.
The department put Google in a spotlight earlier this year when its lawyers went public with accusations that the search giant had engaged in “extreme” discrimination by paying men more than women for the same jobs.
That allegation came amid a lawsuit — seeking large amounts of detailed employee data — by the department’s office for contract compliance, which enforces federal laws over U.S. government contractors such as Google.
The judge’s preliminary decision drastically limits the number of company employees whose contact information must be provided to the Labor Department.
Google’s battle with the department comes as major Silicon Valley firms are struggling in a climate of intense criticism to create diverse workforces. Google, for example, self reports that women make up only 31 percent of its employees.
“What we’ve found so far is really damning,” Labor Department lawyer Janet Herold said Monday. “We found significant pay disparity between men and women in nearly every job classification.”
In the preliminary ruling released Sunday, San Francisco federal administrative law judge Steven Berlin attacked the labor department’s theory that because women at Google are “less successful negotiators than men” and raises are based on their initial lower pay, an “ongoing pay disparity” results.
“Factually (the) theory is little more than speculation,” Berlin said in the ruling.
“The record shows that (the department) has not taken sufficient steps to learn how Google’s system works, identify actual policies and practices that might cause the disparity, and then craft focused requests for information that bears on these identified potential causes,” Berlin wrote.
Berlin also showed sympathy for Google’s contention that giving the department certain personal information for 25,000 employees put the workers’ privacy at risk.
Noting recent data breaches in U.S. Office of Personnel Management and during the U.S. presidential election, plus a recent ransomware attack at the Labor Department, the judge said that “the federal government generally and the Department of Labor in particular are not immune to hacking or to the improper release (‘leaking’) of confidential, private materials about people involved in departmental investigations.”
Google has already handed over data from 21,000 workers, including birth dates and birth places, citizenship and visa status, and salaries and stock options. But the department was seeking contact information for 25,000 workers.
“Adding contact data, such as personal phone numbers and email addresses, increases the risk of harm to Google’s employees,” Berlin said.
Berlin called the demand for so many workers’ contact information “over-broad, intrusive on employee privacy, unduly burdensome, and insufficiently focused on obtaining the relevant information.” That information if provided to the government “could ease the efforts of malicious hackers or misdirected government employees,” he said.
The judge’s order said the Labor Department would be able to choose 8,000 workers whose names, addresses, personal phone numbers and email addresses would be provided by Google. The department would also receive names for a total of 25,000 workers, which the judge noted could be used by Labor Department investigators to track the employees down.
Department lawyer Herold took strong issue with Berlin’s “totally unsupported opinion” about its discrimination theory, and said the decision represented “pretty much an unqualified victory.”
“The judge probably shouldn’t have opined,” Herold said.
Contact information from 8,000 employees is enough to meet the department’s goal of having a large enough group “so that there’s no way Google can sort of back-figure who we talked to and go after them,” Herold said.
The 25,000 names Berlin ordered Google to produce represent another win for the department and its investigators, Herold said.
Google, too, declared a victory of sorts, highlighting in a Monday blog post the judge’s restrictions on worker data to be provided, and his dismissal of the department’s discrimination theory. Google also celebrated the judge’s finding that the company’s annual merit-based pay raises were “intricately designed” to bring people with the same job and performance rating to the same salary over time.
“Assuming the recommended decision becomes final, we’ll comply with the remainder of the order, and provide the much more limited data set of information the judge approved, including the contact information for a smaller sample of up to 8,000 employees,” Google said.
The Labor Department plans to take the information Google is ordered to produce and start talking to Googlers about their jobs and pay.
“The anecdotal experience of men and women working at Google is obviously really relevant, and that’s where we’re going with the next phase of the investigation.”
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