WASHINGTON — Just before President Obama left office, the Office of Federal Contract Compliance Programs (OFCCP), which operates under the Department of Labor (DOL) unveiled a series of lawsuits. They demanded access to compensation data and other hiring information at numerous companies. At the time, OFCCP did not possess any evidence of wrongdoing. However, the office had done some statistical analysis and determined there may be wrongdoing involved. So, they filed what were effectively nuisance suits demanding targeted companies hand over large amounts of information government investigators could then sift through. This fishing expedition offers yet another example of pervasive Federal overreach.
Federal overreach: Business as usual for the Office of Federal Contract Compliance Programs
But this wasn’t new behavior by the Office of Federal Contract Compliance Programs. In 2017, the U.S. Chamber of Commerce wrote an in-depth report that noted the following key fact, indicating, without stating so outright, that OFCCP was harming businesses by wasting their time with the kind of Federal overreach promulgated by the Obama administration.
“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 can not—under Title VII precedent—do so in a vacuum without supporting anecdotal evidence of discrimination.”
Customary “mission creep” becomes Federal overreach, launched by bureaucratic busibodies
Clearly, in response to the Chamber’s observations, the agency could reform itself and focus solely on its mission: contract compliance. But instead, OFCCP shows evidence that it chooses to double down on its harassment of various Government contractors. For example, consider the OFCCP suit against Google. The agency makes the following claim.
“[The agency] 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.”
But the report from the Chamber of Commerce notes that Google had already responded.
“[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.”
Enough information is never enough for US government busibodies
Unfortunately, that wasn’t nearly enough. OFCCP soon demanded the complete job- and salary-history of every employee, going back to the time its founders established Google. The agency never explained why it needed this information. In a true hallmark of Federal overreach, the agency’s bureaucrats just insisted that OFCCP wanted it.
Regarding such attitudes, the Chamber’s paper warns that
“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,”
At this point, the Chamber effectively declares OFCCP 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.”
OFCCP offers to make some amends.
Finally responding to these charges, OFCCP recommends that the agency take the following steps.
- Discontinuing the opaque and, at times, openly hostile approach to compliance evaluations and returning to [OFCCP’s] mandated neutral enforcement role based on sharing of information regarding potential issue areas and attempts to both understand and resolve the issues at hand.
- Returning to a more holistic assessment of contractors’ affirmative action and nondiscrimination efforts.
- 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. Any Federal agency can and will wait a president out.
Discrimination is one thing. Federal agency harrassment of business is another
For too long, it seems, Americans have accepted discrimination by businesses. 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.
DOL Secretary Eugene Scalia should consider withdrawing all OFCCP’s current lawsuits.He should further 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. That is to our credit. But we shouldn’t accept Federal overreach and harassment, either.