Google has tried to restrict reporting on a high-stakes gender discrimination case brought by the US government and fought to have the case thrown out of court because of a federal attorney’s comments to a reporter.
Court documents reveal that Google unsuccessfully argued that a judge should dismiss a lawsuit filed by the US Department of Labor (DoL), claiming that a government attorney may have violated ethics rules by doing an interview with the Guardian on 7 April.
The DoL has accused Google of systematically underpaying women, and the court battle centers on the company’s refusal to hand over salary data the government has requested.
The motion for a dismissal – which a judge rejected, in part citing the first amendment – sheds light on Google’s aggressive efforts to end the case at a time when the tech industry is facing increasing criticisms over sexist workplace cultures, gender discrimination and widespread pay disparities. Critics said it appeared that Google was attempting to limit media scrutiny with unusual tactics that raise free press concerns and seem to contradict the corporation’s public claims that it is committed to transparency and accountability in its efforts to promote equal pay.
Google also attempted to restrict press access during a hearing last month. Following a private meeting with the judge about the Guardian’s reporting, Google’s attorney requested that the proceeding be closed to the media before continuing, but a DoL attorney objected and the judge sided with the government.
The DoL sued Google in January, alleging that the company had violated federal laws when it declined to provide salary history and contact information of employees as part of an audit. Google is a federal contractor, which means it must comply with equal opportunity laws and allow the DoL to inspect records.
At a federal hearing last month in San Francisco, DoL’s lawyers for the first time publicly alleged that the agency’s initial investigation has “found systemic compensation disparities against women pretty much across the entire workforce”.
The department said it uncovered the pay inequities in a 2015 snapshot of wages, but that investigators needed historical compensation data to evaluate possible causes as well as the opportunity to confidentially interview employees.
During the hearing, Google released a statement to the Guardian saying it “vehemently” disagreed with the “unfounded” allegations and raised questions about the DoL’s data and methodology: “Every year, we do a comprehensive and robust analysis of pay across genders and we have found no gender pay gap.”
Asked for a response to Google’s denial, Janet Herold, regional solicitor for the DoL, told the Guardian by phone: “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”
After Herold’s quotes were published, Google’s attorneys abruptly interrupted testimony and called for a private meeting with the judge. The judge then canceled the rest of the hearing, allowing Google to file a new motion under seal to dismiss the case based on Herold’s remarks.
In that motion, filed a week after the hearing and recently unsealed, Google argued that Herold’s press statements made it clear that the DoL had already reached a conclusion about pay disparities, which should render the lawsuit seeking data moot.
Google also questioned whether Herold’s comments to the Guardian were unethical, urging the judge not to “condone” her conduct, citing a California trial publicity rule that says attorneys engaged in ongoing litigation should not make a public statement outside of court that would have a “substantial likelihood of materially prejudicing” the proceeding.
Judge Steven Berlin – who will make the final ruling on whether Google has to release records – refused to dismiss the complaint. Herold made no ethical violations, and her comments to the press would not affect the outcome of the suit, he said.
The judge, however, also wrote that the DoL’s comments to the Guardian “raise concerns”, arguing that “public statements such as those here could create obstacles to conciliation” and that “Herold could readily have declined to comment on a pending matter”.
The DoL argued in its filings that it was hypocritical for Google to accuse the government of misconduct for answering a reporter’s questions: “It is disingenuous for Google to comment to the press, and then complain when someone responds to its statements.”
The DoL declined to comment on the recent filings. A Google spokesperson said: “We … look forward to continuing the hearing on the access demands”, adding: “As we’ve stated before, our analysis gives us confidence there is no gender pay gap at Google.”
Therese Lawless, a Silicon Valley attorney involved in a number of high-profile discrimination cases, criticized Google for targeting the DoL attorney’s press comments, noting that lawyers involved in litigation regularly talk to reporters: “They’re just trying to come up with any argument. That’s ridiculous.”
Lawless, who is not involved in the Google case, also said the company should be more transparent about its compensation practices: “If you’re innocent, then you open your records up in such a manner that people can see that people are being paid equally.”
Jennifer Schwartz, another attorney who has represented women in Silicon Valley cases, noted that the wage gap has been widely documented in the tech industry and that Google should not be resisting independent scrutiny.
“Why wouldn’t you want to take a hard look internally with the help of the DoL investigation?” she said, adding: “If there are inequities, they need to be addressed, because it is illegal.”