Despite the decisive results of the 2016 election, the ghost of former President Barack Obama’s misguided progressive policies haunts the halls of the Trump administration’s Department of Labor (DOL), and American companies are paying the price in the form of high-cost, unreasonable discrimination lawsuits lacking in evidence and statutory authority.
Just two days before former President Obama left office, the DOL filed a lawsuit against Oracle America, Inc. alleging that the technology company paid Caucasian male employees more than coworkers of other genders and races with the same job title. Similarly, the DOL sued information giant Google seeking vast troves of race and compensation data on January 4, 2017 and filed suitagainst software company Palantir on January 26, 2017 for allegedly discriminating against Asian applicants.
Simply put, if a company discriminates against protected characteristics such as gender or race, they should be prosecuted to the full extent of the law. However, in all three cases, no concrete evidence or examples of discrimination were presented, only a statistical analysis of data provided to the DOL’s Office of Federal Contract Compliance Programs (OFCCP), the driving force behind the aggressive lawsuits.
According to the OFCCP’s website, its core mission is to “protect workers, promote diversity and enforce the law,” as well as to hold federal contractors responsible for taking affirmative action. Unfortunately, according to numerous sources, the agency has strayed from its core mission in favor of a progressive agenda designed to harass and intimidate American companies.
“OFCCP has become an agency that appears to focus more on garnering splashy headlines and securing high-dollar settlements than it does simply pursuing its admirable, if at times, unglamorous mission,” the US Chamber of Commerce wrote in a 2017 report, adding that the agency “is too often antagonistic toward the regulated community,” “ignores the myriad and effective diversity efforts undertaken by contractors,” and “engages in overly broad and unreasonable fishing expeditions for employment data.”
Furthermore, members of the Chamber have expressed that OFCCP officials have engaged in abusive practices such as demanding vast quantities of data in an unreasonable timeframe, unfettered access to private emails, and flatly telling employers “we can ask for anything we want.” Since OFCCP has the power to disqualify federal contractors and the lawsuits are handled internally at the DOL, most companies are forced to go along with the rogue agency’s demands.
Now, some companies are fighting back.
In late November, Oracle counter-sued the DOL, contending that the OFCCP operates outside federal law. “Without authority from any act of Congress — indeed in contravention of congressional legislation — a group of unelected, unaccountable and unconfirmed administrative officials have cut from whole cloth this adjudicative agency-enforcement scheme,” the company wrote in the lawsuit.
Moreover, the lawsuit challenges the fundamental basis of the OFCCP’s lawsuits against numerous companies—that statistical analysis can be the sole basis of a discrimination case. According to a statement filed by Oracle on Wednesday, the case against the technology rests on “false allegations, cherry-picked statistics and erroneous and radical theories of the law.”
Considering these factors, the evidence against the OFCCP is extremely compelling, and it’s vitally important that the Trump administration, particularly the newly appointed Secretary of Labor, Eugene Scalia, reform this wayward agency for the benefit of all workers.
Companies that operate with rigid, inflexible pay structures are to the detriment of all workers, particularly top performers. Government “check the box” forms as a part of routine audits can’t possible capture the multifaceted differences in wages and promotions across an entire company. Rigid pay structures not only distort labor markets but reduce job prospects and economic growth.
Luckily, there’s a path forward for the OFCCP’s mission that complies with Congress’ original intent.
The U.S. Chamber of Commerce recommends several substantive changes to the OFCCP in order to restore balance to the regulatory climate, including returning to the agency’s core mission of fostering affirmative action and abandoning its transformation into a plaintiff-style enforcement agency.
Ultimately, President Trump must work quickly to exorcise the progressive policies from within the Department of Labor for the benefit of the nation’s economy and the welfare of American companies.