An ALJ has largely put the kibosh on a request for decades of comp data.
In January 2017, the Office of Federal Contract Compliance Programs filed an administrative complaint against Oracle America, Inc., alleging systemic pay discrimination against females, African Americans, and Asians. (Other allegations of discrimination against non-Asians in the college recruiting process were resolved by Consent Order on April 30, 2019.)
The OFCCP’s complaint alleges that Oracle paid female, African American, and Asian employees less than comparable white and male employees in three different job groups at its company headquarters starting on January 1, 2013, which is the earliest date for which the OFCCP can recover based on the statute of limitations. The case has been pending since 2017 while the parties conducted discovery. We reported earlier on an Order requiring the OFCCP to respond more fully to Oracle’s discovery requests.
The OFCCP’s request
The latest development arose when the OFCCP filed a motion to compel, seeking data that Oracle refused to provide in response to discovery requests. The OFCCP had requested the complete compensation history for every employee in the job categories at issue, dating all the way back to 1985. The agency sought this information even if the employee was not employed during the relevant time period (on or after January 1, 2013). Not surprisingly, Oracle balked at this extremely broad request for data. Oracle had already provided or agreed to provide the complete compensation history dating back to 1985 for each individual employed between January 1, 2013 and January 18, 2019. However, the company contended that the individuals employed before January 1, 2013, were not valid comparators because they were not employed during the class period. Therefore, the company argued, information relating to their compensation was not relevant.
The ALJ’s order
Administrative Law Judge Richard M. Clark agreed with Oracle – at least for the most part. Analyzing the motion under the applicable standards for discovery, he was not persuaded by the OFCCP’s assertions that the data was “necessary.”
Any claim for compensation discrimination must be based on discrimination that occurred after January 1, 2013. In showing the disparity that is the basis for the claim, OFCCP must rely on compensation data for employees in the class as compared to other employees at Oracle’s headquarters, in the relevant job functions, and at some point after January 1, 2013. These other employees represent the “true comparators.” OFCCP already has the full information for the true comparators (and class members), which is why it has been able to make the allegations it has. It appears, then, that OFCCP has everything it needs to show any disparities actionable here. And since it has the compensation history of all class members and true comparators, it has what it needs to connect any disparity as to those employees to a past employment practice.
Regarding relevance, the ALJ noted that the requested historical data could be relevant to showing whether a particular employment practice caused any disparate impact, which is a necessary element of the OFCCP’s claim.
The theory is that some practice in the past created a disparity in the present. Evidence about where the disparities come from historically, and how they develop (or dissipate) over time could assist in the showing. It could also undermine the theory.
Forecasting his ultimate decision, the ALJ also noted that “[t]he further away we get from the class-period and consider the pay history of individuals who left Oracle well before the period directly relevant to this case, the less bearing the information is likely to have on the relevant legal questions.”
Finally, the ALJ considered the proportionality of the request – including whether the burden and expense of responding outweighed the likely benefit. The OFCCP incredibly characterized the burden of producing decades of compensation data for more than 12,000 employees as “minimal,” and the agency “expressed indifference to any burden [the request] might impose” on Oracle. According to the ALJ, the OFCCP’s “attitude on this point is puzzling. . . . OFCCP’s seeming indifference to the massive costs imposed by its broad demands is contrary to the spirit of the rule (and the rules generally), which directs parties to consider and minimize the costs of litigation.” The burden on Oracle was “substantial,” the ALJ said.
It should not have taken an ALJ order for the OFCCP to realize this.
Because the compensation data preceding the time period at issue did have some relevance and because providing a smaller data set would decrease the overall burden on Oracle, the ALJ ordered Oracle to provide compensation history for individuals in the three job categories for an additional three-year period, or from January 1, 2010 through December 31, 2012.
The time period immediately preceding the class period is more likely to contain or lead to relevant evidence because it is more likely to . . . provide a useful comparison as to Oracle’s compensation practices in reference to the class members. Employees in the relevant job categories who departed shortly before the class period are most similarly situated to those who were employed during the class period. In addition, the burden of discovery is substantially lessened by narrowing its scope and looking at more recent employees.
Although not a total win for Oracle, I’d take a three-year data production over a 28-year data production any day!
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