Google and Oracle class certifications outline plan for compensation cases


An order from a California judge allowing a class of 10,000 women to file a wage discrimination complaint against Google Inc. offers a roadmap for other complainants seeking to tackle gender inequalities in the workplace, unlike other battles against tech giants that have failed to gain traction.

The Google case follows a similar ruling last year in a case against Oracle Corp., which also received class action status. The women in this case also survived a motion to fire from the tech giant earlier this year. Trials will likely be set for both lawsuits in 2022.

As these lawsuits advanced, others faltered. Workers’ lawyers say there is still a way to reach the critical stage of class certification, despite a high bar the US Supreme Court set with a 2011 ruling that blocked 1.5 million women workers Walmart inc. to pursue their complaints of discrimination as a group.

“There has been an overreaction to this case. Yes, it has made it more difficult to certify class actions for discrimination in employment, but it is not at all impossible, ”said Pauline Kim, a law professor at the University of Washington, studying labor law.

In the Google and Oracle cases, lawyers sued under California’s equal pay laws and targeted companies ‘use of job seekers’ previous wages to set pay. The practice has been banned in a handful of states, with advocates including the U.S. Equal Employment Opportunity Commission saying that because women are historically paid less than men, the use of their previous salary increases the salary gaps.

“The two companies have a practice that has a disparate impact,” said Altshuler Berzon Jim finberg, which represents workers in the Google and Oracle files. “If you use prepayment, you are blocking historical discrimination. “

Federal and state courts are divided on the issue of prior pay as a defense against equal pay lawsuits, and the US Supreme Court has declined to hear a case that would have considered the issue .

Google argued in court records that the class should not have been certified because the case requires “unlimited individualized testimony” for different types of work performed by more than 33,000 employees. While lawyers for Google did not respond to a request for comment, a company spokesperson provided a statement.

“We strongly believe in the fairness of our policies and practices,” the statement said. “The company performs rigorous pay equity analysis to ensure that wages and bonuses are fair, and will adjust wages if necessary. “

“Essentially similar”

Women engineers in both Twitter Inc. and Microsoft Corp. failed to gain class action status for their gender bias cases and those rulings were upheld on appeal in 2018 by the U.S. Court of Appeals for the Ninth Circuit. Nike Inc. also faces a pending class action lawsuit in Oregon federal court over compensation and promotion practices.

The Twitter and Microsoft cases were prosecuted under Title VII of the Civil Rights Act of 1964, not federal or state statutes of the Equal Pay Act. Unlike the Google and Oracle cases, they also did not allege discriminatory pay on the basis of a common policy of using wage history to set pay.

Finberg said that in some ways Equal Pay Act claims, both federal and state law, are easier to certify than Title VII claims. , who have a higher bar to prove that there has been discrimination. California law is also more employee-friendly, he said, because it compares “essentially similar” rather than “essentially equal” jobs.

The substantially similar standard more closely follows the science of how jobs are organized and compares jobs rather than person in jobs, said Kelly dermody, which represents the Google class.

“That’s not where federal law was headed for a while,” said Dermody, partner of Lieff Cabraser Heimann & Bernstein in San Francisco. “Federal law influences the interpretation of state law, and sometimes the opposite is true.”

She said federal courts sometimes view equal pay claims too narrowly. In contrast, courts in New York and Massachusetts, as well as California, have ruled in favor of workers in equal pay cases.

Meanwhile, gender gaps pervade many industries, from Silicon Valley to Wall Street and big box retailers, Dermody said. Data shows that women in the United States earn 80 cents on the dollar compared to men in similar roles, and the gap is larger for women of color.

“Many companies have huge pay gaps between men and women. They figured it was okay to pay people differently for the same job because they had to hire someone at the higher rate to recruit them. It’s not the law and it never was the law, ”she said. “Unfortunately, these salary decisions that come early in their careers create massive salary gaps in a short period of time. “

‘New frontier’

Google’s certification decision “opens a new frontier in employment” in California, said Travis Gemoets, partner of Jeffer Mangels Butler & Mitchell LLP, which represents employers. He said it could also influence federal equal pay classes.

“You’re going to see a lot more of this litigation in California,” Gemoets said, adding that the stakes are high with these types of claims because there are a lot of high paying people.

From an employer’s perspective, he said so many salary decisions are very individualized and they have opposed classes that compare apples to oranges.

However, many companies are struggling to address inequalities before they are hit by equal pay lawsuits, Gemoets said.

With “increased” exposure, employers previously reluctant to take action to close gender gaps may be more likely to do so to avoid class actions, he said.

Class common

There is no doubt that there have recently been additions to some state equal pay laws that make them more protective against wage disparities, said Joe sellers, a Washington, DC-based partner at Cohen Milstein Sellers & Toll, who is not related to the Google or Oracle class actions. The sellers represented the plaintiffs in the Walmart Stores, Inc. v. Dukes class action lawsuit that went to the short Supreme.

Salespeople have said the issue of using past wages is under more scrutiny, but courts vary and some are more comfortable allowing employers to rely on this practice to set rates of pay.

He said that when a company has a common system for setting wages, this is a very important characteristic essential to class certification – and this is also consistent with federal claims of the Equality Act. salaries.

“The key to certifying claims was the common system of setting pay rates and the data available to make comparisons for workers in the same or similar jobs and to account for factors that otherwise explain pay rates regardless of sex, ”he said.

Class certification is a key step, and the advanced study lawyers have proposed for the Google and Oracle cases show that an individual claimant would likely have a hard time marshalling these resources for an individual claim.

“The failure to get a certified class, for most class members, is the end of their claims,” Sellers said. “Class certification in itself is not that easy and the courts have increased this burden over the past 15 to 20 years. “

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