During the turbulent tenure of former Secretary Alex Acosta, a Jeffrey Epstein apologist and Billionaire Democratic Party donor enabler, the Department of Labor (DOL), through the Office of Federal Contract Compliance Programs (OFCCP), acted to further the Obama Administration’s socialist agenda by harassing and vexing businesses engaged in federal contracting. Astoundingly, even though Acosta’s resigned amid the Epstein scandal and the Trump Administration is pushing to expand economic growth via streamlined labor laws, the OFCCP remains the feared torturer of American Industry. 

Before resigning, Acosta acted like an Obama holdover in the Trump Administration. Bizarrely, Acosta’s replacement, erstwhile conservative Eugene Scalia, son of the revered conservative jurist Antonin Scalia, effectively perpetuates the Deep State Liberal hijacking of the DOL by failing to halt the OFCCP Obama Labor Inquisitions. Many conservatives hope that this Sec. Scalia will fix this problem when he has an opportunity to adjust the goals of the Department and this rogue agency to comport with the Trump Administration’s goals and agenda.

The Obama DOL filed a barrage of lawsuits mere days before President Trump’s swearing in. Under Acosta’s leadership, the OFCCP avidly continued to pursue the Obama era’s politically motivated lawsuits against companies in a broad spectrum of industries. The suits charged the companies with discriminatory wage practices by using outcome-oriented statistical manipulation to find discrimination on paper without any evidence of actual discrimination. These lawsuits are against significant corporations such as Oracle and Google. Large or small, any company finding itself in the OFCCP’s arbitrary crosshairs has just as much chance of being found innocent as would an accused heretic before Torquemada in the Spanish Inquisition.

The stunning truth is that few, if any, of the OFCCP torture victims have intentionally violated applicable labor laws. Unlike disparate treatment, which focuses on intentional discrimination, the disparate impact theory can find discrimination even absent intent.  Many of these disparate impact cases do not involve illegal or even actionable workforce discrimination under the myriad labor laws, specifically Title VII of the Civil Rights Act of 1964. 

If the government contractor tries to defend its lawful behavior, the OFCCP has the power to debar government contractors – the equivalent of a lifetime ban. Government contractors are therefore incentivized to accept the financially crippling fines and penalties the OFCCP arbitrarily and capriciously imposes. The OFCC investigative process also presents its own unique brand of torture, waste and expense. An OFCCP investigation makes IRS audits look like an afternoon at the ballpark. 

To support its allegations of disparate impact discrimination, OFCCP relies almost entirely on the contractor’s own data. This dependency on data-driven enforcement theories has a direct influence on OFCCP’s demanding tactics during investigations. Indeed, what fuels OFCCP’s audits is its practice of alleging unintentional disparate impact discrimination based on an undisclosed and often different statistical modeling of employer data that varies from industry to industry and often from company to company without demonstrable evidence of discrimination.  OFCCP is notorious for demanding that companies produce vast quantities of contractor statistics and data within a startlingly unreasonable and Draconian timetable. Penalties are levied for failure to comply with the caprices and whims of the OFCCP Inquisitors.

The impact of current OFCCP’s predatory enforcement policies creates ignores local job markets and communities in favor of a mythical statistical labor pool that in reality does not exist. Although it boggles the mind, OFCCP has levied substantial penalties against Frito-Lay for allegedly discriminating against minority job applicants in favor of hiring local workers of Hispanic heritage in South Texas. At the same time, the OFCCP penalizes and harasses tech companies like Oracle for hiring “too many” members of the local Asian-American community in Northern California instead of Hispanic employees. It is as though the OFCCP wants federal contractors to bus workers around the country to create a mythological Utopian ideal labor community. 

Notwithstanding that OFCCP acknowledges a lack of actual or purposeful discriminatory intent, it demands “statistical busing” to uproot and relocate the American workforce. The DOL’s legions of anti-business attorneys target flourishing local industries that distinctive local resident “minority” populations built. This wrongheaded pursuit of a social justice agenda in disregard of the law is social engineering at its worst. The level of cynicism is nearly immeasurable, and the waste of billions of taxpayer dollars is nearly incalculable.

Gone are the pre-Obama days of the DOL  and federal contractor community working together. Cooperation was once the pathway to efficient expenditures of public funds on public projects with the goal being full diversity of the contractor workforce.  Obama’s lingering Deep State Department of Labor has abandoned the historic cooperative community model to make each industry better and more inclusive in favor of a “gotcha” small town Sheriff predatory “speed-trap” concept. A government contractor cannot win once it’s in the OFCCP’s crosshairs. The data will be skewed, and the books will get cooked to find violations. That is a certainty.

That the DOL Inquisition continues in the Trump Administration is inexplicable and contrary to everything the current White House cherishes. The OFCCP lawsuits must be dismissed and the wasteful and inefficient anti-business DOL government contractor Inquisition Torture Chamber closed forever as a vestige of inefficient social engineering.

W. Bruce DelValle is a constitutional law, technology law, and international law litigator and founding member of the Washington, D.C. litigation firm Fein & DelValle PLLC.  He is a native Texan who grew up on the Gulf Coast of Florida, graduated from Penn State University, and worked as a nuclear power engineer prior to graduating cum laude from Washington and Lee University School of Law.