The U.S. Department of Labor Takes on Discrimination by High Tech Employers

The U.S. Department of Labor is challenging long-standing and overt discriminatory employment practices in the high-tech industry by threatening to cancel the alleged violators’ federal contracts.

In recent months, the DOL has sued Oracle America, Inc., Google Inc. and the startup, Palantir, for alleged discriminatory conduct. This follows years in which the DOL and the EEOC appeared to have adopted a “hands off” policy with respect to high-tech employers.

The DOL filed a lawsuit on Jan. 17 charging Oracle with allegedly paying white males more than other workers at its Redwood Shores, CA,  headquarters. The DOL reported finding “gross disparities in pay even after controlling for job title, full-time status, exempt status, global career level, job specialty, estimated prior work experience and company tenure.”

The DOL also charged Oracle, which has 45,000 employees across the country, with heavily favoring Asian Indians in hiring and recruitment. The lawsuit alleges that 82 percent of new hires in a professional technical group at Oracle’s headquarters were Asian during a six-month period in 2013,  even though only 75 percent of job applicants were Asian. The DOL noted that Oracle targeted Asian Indians in recruitment efforts that including referral bonuses.

Oracle allegedly discriminated against White, Hispanic, and African-American applicants.

The lawsuit alleges Oracle discriminated against “qualified White, Hispanic, and African-American applicants in favor of Asian applicants, particularly Asian Indians” in 69 job titles at its headquarters. The suit alleges that Oracle discriminated against qualified female employees in technology, support and product development units.

Earlier this year, the DOL sued  Google to pressure the search engine giant to turn over compensation data on its employees and  Palantir, for allegedly discriminating against Asian job applicants.

The stakes are high. Millions of dollars. All of companies deny engaging in discriminatory conduct.

The DOL lawsuits are based on alleged violations of Executive Order 11246, which was signed into law by former President Lyndon Banes Johnson in 1965 and prohibits discrimination in hiring and employment by federal contractors on the basis of race, color, religion, sex or national origin.  The Executive Order does not include age discrimination, which is not monitored by either the DOL or the EEOC.

The Executive Order requires federal contractors to submit documentation of hiring and employment practices to the DOL’s Office of Federal Contract Compliance Programs.

The Oracle lawsuit is based on a compliance review dating from Jan. 1, 2014. The DOL claims Oracle refused to produce employment data predating 2013.

Feds Bear Responsibility for Age Discrimination in Hiring

Note:  A major research study was released Monday finding “robust evidence of age discrimination in hirng against older women.” – Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment by David Neumark, Ian Burn, and Patrick Button

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Age discrimination in hiring is epidemic in the United States and much of the reason for this is directly attributed to our own federal government.

It’s almost impossible for individuals to fight age discrimination in hiring because they lack access to critical information, such as the identity of the other candidates and why the successful candidates were chosen.  A highly qualified older job applicant  may suspect age discrimination but can’t prove it. The evidence is in the hands of the employer, who has no obligation to release it unless it is demanded pursuant to court-ordered discovery in a lawsuit.  A lawsuit alleging age discrimination in hiring is almost certain to be dismissed prior to discovery if it is based solely upon speculation. It’s a vicious circle –> no information, no basis for a lawsuit -> no lawsuit, no ability to obtain information.

This is why it is incumbent upon the Equal Employment Opportunity Commission  and the U.S. Department of Labor to protect workers from arbitrary discrimination in hiring. But the EEOC and DOL have virtually ignored the problem since it became an epidemic during the Great Recession of 2008.

The EEOC filed 12 lawsuits with age discrimination claims in 2014, compared to 76 lawsuits with Title VII claims  (primarily race and sex discrimination)  and 49 lawsuits with disability claims. The EEOC filed only 7 lawsuits with age claims in 2013.

Here are somes things that our government can do now to deter age discrimination in hiring:

  1. The EEOC could require employers to provide age-related data, along with data on the race and gender of their employees,  in their mandatory EEO-1 Reports, which are due at the end of this month. The EEOC could use this information to identify and prosecute corporate “bad actors” who refuse to hire older workers (i.e. Silicon Valley tech companies). If the EEOC does not accept that it has the regulatory authority to require employerss to provide age  data, it could ask Congress for the authority.
  2. The federal government could stop engaging in age discrimination in hiring. Not only does this hurt older workers but it sends a terrible message to private sector employers that age discrimination in hiring is warranted, reasonable, okay and will be tolerated.
    1. U.S. Department of Labor Secretary Thomas E. Perez could withdraw his support for the “100,000 Opportunities Initiative”  by America’s top corporations to hire workers between the ages of 16 and 24. This initiative blatantly violates the terms of the ADEA, which prohibits any consideration of age in hiring (except for a few categories of workers to which this does not apply).
    2. President Barack Obama could rescind his 2010 executive order that permits federal agencies to discriminate against job applicants on the basis of age. After all, if the feds can do it, why can’t Silicon Valley?
    3. The EEOC could acknowledge that complaints about age discrimination comprise almost a quarter of all of the complaints the EEOC receives annually but only a tiny fraction of the agency’s investigatory and prosecutorial resources are devoted to the problem. Age discrimination is no less harmful than other illegal and arbitrary discrimination so why does it get such short shrift from the EEOC?

On Monday, there were  1000+ jobs on Monster.com posted by employers and employment agencies seeking to hire  “recent graduates” and 1000+ jobs  advertising for a “digital native.”  Technically, it is unlawful under the ADEA to print or publish a “notice or advertisement” indicating preferences or limitations relating to age. The overwhelming majority of recent graduates and digital natives are under the age of 40.  But no one has been held to account in recent years for this widespread practice.

A law that is not enforced is an illusion.