If you heard the Trump Administration Department of Labor was using legal theories developed under Barack Obama to sue some of the nation’s most successful companies, you’d probably presume it was some kind of “fake news.”
You’d be wrong. And what’s even more remarkable is that it appears to be going on without the approval of Labor Secretary Eugene Scalia who, his admirers believe, has one of the sharpest minds in Trump’s Cabinet.
A little-known agency inside the department called the Office of Federal Contract Compliance Programs (OFCCP) was created to promote affirmative action in federal contracting. Left-wing, anti-business progressives took it over under Obama and transformed it into a place that uses data collected from contractors to look for discrimination in hiring and promotion rather than complaints filed by employees.
This, say some who follow the agency’s actions closely represents a significant departure from past practices. Discrimination suits are being brought using data mined from government contractors on hiring and promotions, using statistical anomalies to manufacture discrimination claims.
This approach, which critics describe as unreliable, is nonetheless being used by the Trump administration to taint companies with bogus allegations, usually hinging on the idea a “pay gap” exists between women and men or between different racial categories. Romina Boccia of The Heritage Foundation wrote about this in 2017 saying, “The Department of Labor has sued several tech companies, including giants like Google and Oracle, for alleged gender discrimination in pay. Pay disparities reflect a wide number of variables that aren’t easily captured in overly simplistic government statistics.”
Boccia cites the fact “current research has limitations in what factors are included,” because it doesn’t include data on women’s “strong preference for in-kind benefits over cash wages” and “immeasurable components of compensation—such as flexible work schedules—likely account for the remaining gap.” The use of statistics alone without taking other mitigating factors into account is public policy malpractice that ignores the realities of the world and the workplace.
The United States Chamber of Commerce has targeted the agency as particularly hostile to businesses. In a 2017 report, it exposed OFCCP tactics like demanding employers “provide enormous amounts of data in a short time frame, rather than working with the employer to narrow the request to focus on data relating to a specific issue.” And it’s been found to have unilaterally set “dates and times for on-site investigations without an invitation to discuss legal issues or trying to work with the employer’s schedule.”
This may sound benign but these tactics amount to the bullying of business to settle unfair suits quickly rather than fight and potentially commit so-called process crimes while doing so.
The goal of the lawsuits brought by OFCCP has been to establish new legal precedent allowing for statistics alone to be the basis of a case of employment discrimination. Evidence of a hostile comment by an employer, email exchanges between hiring authorities evidencing discriminatory intent, and other direct evidence need not be provided.
This is a dangerous precedent, something a sharp and experienced attorney like Secretary Scalia would recognize immediately. It is inconsistent with the American legal doctrine that a person, or in this case a company, need not affirmatively prove they have done nothing wrong. Due process counts, as does the presumption of innocence. Liberal activists want to use case law to rewrite the statutes to shift the burden of proof to the employer based on a mere allegation. They should not be allowed to get away with this.
We already know how damaging an accusation can be, especially when it concerns issues related to racial or gender bias. Companies should not have to prove they are not guilty. The government should have to prove they are, using something more than a statistical model that paints a distorted picture of a company’s hiring or promotion policies. This sloppy legal practice should be put to an end immediately, and Secretary Scalia should make it a priority to see that this occurs.
Peter Roff is a senior fellow at Frontiers of Freedom and a former U.S. News and World Report contributing editor who appears regularly as a commentator on the One America News network. He can be reached by email at RoffColumns@gmail.com. Follow him on Twitter @PeterRoff.
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