One of my biggest grievances with Alex Acosta’s stewardship of the Department of Labor was his pursuit, based on indefensible statistical analyses, of compensation discrimination claims against Oracle and other high tech Silicon Valley companies. I discussed the flaws in the Labor Department’s analyses here.
These actions were filed in January 2017, just as the Obama administration was coming to an end. The idea was to force the Trump Labor Department to pursue them, or else be criticized by feminists and the mainstream media for refusing to do so.
Alex Acosta could easily have pulled the plug on these meritless cases. Criticism would have been perfunctory because it is customary for a new administration to review its docket, with special attention to cases brought by the old administration at the last minute.
However, Acosta’s goal was to avoid all criticism from the left. He did not want to burn any bridges he might need to cross in order to become a high-level federal judge or attorney general of the U.S.
I hoped that, when Acosta left the DOL, the Trump administration would terminate its cases against Oracle and Google (a third Silicon Valley case, against Palantir, has been settled). This would not have been an easy step. It’s one thing for an administration, when it comes to power, to review a case filed in the dying embers of the previous administration, and find that case wanting. It’s another to drop a case the new administration has been pursuing for several years.
In the latter instance, criticism from feminists and the mainstream media will be more vociferous and more plausible. The question will be, if the Trump administration prosecuted this case for almost three year, why did it suddenly give up on the matter? The honest answer — that the previous Labor Secretary was a wuss — isn’t one the new Secretary can give.
Thus, the path of least resistance was to keep pursuing the Oracle and Google cases.
But the Trump administration was elected to “drain the swamp,” not to take the path of least resistance. Moreover, no administration should ever press a case that rests on faulty premises, statistical or otherwise.
Thus, Gene Scalia, the new Secretary of Labor, should have ordered that the cases against Oracle and Google be dropped.
He did not. Consequently, the trial of the Oracle case began yesterday before an administrative law judge. The DOL alleges pay discrimination against female, Asian, and black employees during the period from 2013 through 2016.
According to the Washington Post, the Labor Department’s lead witness testified that during a meeting in “the mid-2000s,” the head of human resources said “if you hire a woman, she will work harder for less money.”
If made, this statement suggests, among other things, hiring discrimination against males. Yet, the DOL presents no such allegation.
In any event, what an HR head said in the mid-2000s has little, if any, relevance to Oracle’s pay policies in the period 2013-2016. A proper statistical analysis is the best evidence as to whether Oracle committed systemic pay discrimination in this time frame.
According to the Post, Oracle argued that the DOL’s expert statisticians compared employees based on broad job title and failed to take into account that a software developer who worked on Oracle’s product PeopleSoft is correctly valued differently than a developer who works on the artificial intelligence of machine learning.
These are the same points I raised back when the Obama Labor Department was entering its tenth year. They are valid and dispositive. They should have caused DOL’s current leadership to abandon the case or, at most, to settle it for peanuts.
Instead, the Trump administration continues to pursue a BS case foisted upon it by left-wing lawyers from the Obama administration.