The great political philosopher Homer Simpson said it best: “People can come up with statistics to prove anything.” The Department of Labor is Exhibit A when it comes to proving Homer’s point.
In early 2017, just before President Donald Trump took the oath of office, Labor’s Office of Federal Contract Compliance Programs filed separate lawsuits against Oracle and Google. The Department was: “alleging the leading technology company has a systemic practice of paying Caucasian male workers more than their counterparts in the same job title, which led to pay discrimination against female, African American and Asian employees,” it explained in a news release about Oracle. Its charges against Google were similar.
The problem: There was no actual evidence of discrimination.
Both lawsuits were filed by OFCCP on the basis of statistical analysis. That means it was using statistics to “prove” whatever it wanted them to prove, because there was no actual numerical evidence. Keep in mind: there is no statutory authority for litigation alleging discrimination by federal government contractor companies using a statistical analysis and without actual evidence of discrimination. OFCCP is going far beyond its mandate. It is supposed to “protect workers, promote diversity and enforce the law,” not make up stats.
This has been going on for years. “Over the last several decades, OFCCP has evolved from an agency that balanced efforts to foster affirmative action with ensuring nondiscrimination to an agency singularly focused on nondiscrimination,” the U.S. Chamber of Commerce wrote in a white paper a few years ago.
Problems popped up, the Chamber found, because “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 goal of the lawsuits, apparently, was to force the companies to reveal something that might be embarrassing. That might mean discrimination, high pay for executives, a lack of benefits. Who knows? Sentence first, verdict afterwards.
But even if it is pay differences between men and women that the OFCCP is concerned about, those can be explained. “Pay disparities reflect a wide number of variables that aren’t easily captured in overly simplistic government statistics,” Romina Boccia of The Heritage Foundation writes. “The gender pay gap is the most blatant example of drawing false conclusions from incomplete data. When accounting for measurable, relevant factors, the statistical pay gap between men and women all but disappears.” That would seem to render the OFCCP’s lawsuit moot.
The shame here is that the agency does have an important role to play. It just needs to stay within its legal boundaries. The Chamber’s white paper recommends it:
- return to its core mission of fostering true affirmative action by federal contractors and subcontractors, and
- abandon its transformation to an opaque, plaintiff-style enforcement agency, purposefully hostile to the contracting community and singularly focused on issuing findings of discrimination, often where none exist.
Lawmakers could force OFCCP to reform. They’ve considered bills to update the laws the agency operates under. However, in today’s divided Congress, those bills aren’t likely to gain much traction.
The Trump Administration, though, doesn’t need a congressional mandate. It controls OFCCP, and could demand the agency return to its proper role of oversight without statistical analysis. Crack down on actual abuse without killing the very companies that are generating massive economic growth.
These midnight lawsuits should have been pulled as soon as the Trump Administration took over. Trump is dedicated to expanding economic opportunity, not closing it off through frivolous and expensive litigation.
Allowing rogue liberal lawsuits in an effort to harass successful businesses for perceived discrimination is a direct threat to free markets and the Trump Administration’s push to expand economic growth. The OFCCP is acting far beyond its true authority. The rest of the executive branch needs to bring it back under control.