Stop the Federal Discrimination Fishing Expedition

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For too long, it seems, Americans have accepted discrimination by business. From redlining in housing to an old-boys network for hiring, companies once actively took steps to exclude minorities. But those days are gone.

The 21st Century is one of equal opportunity for all. One reason for that is the growth of a high-tech economy. In Silicon Valley, what really matters is whether someone can do the job, not where they are from or what color of their skin might be. Companies there and across the country are taking steps to employ a skilled, diverse workforce. Unfortunately, some in the federal government haven’t noticed.

Just before President Obama left office, the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor unveiled a series of lawsuits demanding access to compensation data and other such hiring information at several companies. At the time, the OFCCP did not have any evidence of wrongdoing. However, it had done some statistical analysis and determined there may be wrongdoing, so nuisance suits were filed demanding several companies hand over large amounts of information that the government could then sift through.

This wasn’t new behavior by OFCCP. In 2017, the U.S. Chamber of Commerce wrote an in-depth report explaining that “OFCCP relies almost entirely on the use of statistical analysis of contractor-provided data.” That’s a problem, the Chamber added, because “while the Agency may properly consider statistical evidence, it cannot — under Title VII precedent — do so in a vacuum without supporting anecdotal evidence of discrimination.”

The agency could reform itself and focus on its mission. Instead, OFCCP seems to be doubling down on its harassment of various government contractors. For example, consider its suit against Google. The agency says it “asked the technology giant to submit information in September 2015 about its equal opportunity program and to provide supporting documents as part of a scheduled compliance review.”

The report from the Chamber of Commerce says that Google “had already produced compensation data for all 21,000 employees at its headquarters, as well as ‘hundreds of thousands of’ additional compensation-related records.” But that wasn’t enough. OFCCP soon demanded the complete job- and salary-history of every employee, going back to when Google was launched. The agency never explained why it needed this information, just insisted that it wanted it.

“OFCCP has dedicated its resources and personnel to probing alleged numbers-based systemic discrimination in pay and personnel actions while ignoring its basic responsibility to serve as a neutral enforcement agency. This includes significant good faith efforts by federal contractors to employ and advance in employment women, racial minorities, veterans, and individuals with disabilities,” the Chamber’s paper warns. At this point, OFCCP is guilty of harassment, not proper enforcement.

“OFCCP is an agency that has lost its way, increasingly relying on abusive enforcement tactics and catchy press releases instead of focusing on its central mission of ensuring that companies participating as federal contractors take proactive, affirmative steps to ensure equal employment opportunity through a neutral enforcement program,” the Chamber points out. It recommends:

  1. Discontinuing the opaque and, at times, openly hostile approach to compliance evaluations and returning to its mandated neutral enforcement role based on sharing of information regarding potential issue areas and attempts to both understand and resolve the issues at hand.
  2. Returning to a more holistic assessment of contractors’ affirmative action and nondiscrimination efforts.
  3. Retreating from the strictly numbers-based game of gotcha currently employed by the Agency.

Those are all are sensible steps. But the Trump administration shouldn’t wait for the bureaucracy to reform itself.

Labor Secretary Eugene Scalia should consider withdrawing all OFCCP’s current lawsuits, and insist that the agency show actual evidence of discrimination, not “statistical estimations,” before demanding data from law-abiding companies.

Today’s Americans won’t tolerate discrimination, and that is to our credit. But we shouldn’t accept federal harassment, either.

Michael Busler, Ph.D. is a public policy analyst and a professor of finance at Stockton University in Galloway, New Jersey, where he teaches undergraduate and graduate courses in finance and economics. He has written op-ed columns in major newspapers for more than 35 years. @mbusler

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Dr. Busler is an economist and a public policy analyst. He is a Professor of Finance at Stockton University. His op-ed columns appear in Townhall, Newsmax.

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