The Department of Labor (“DOL”) has sued several tech companies, including tech giants like Oracle America, Inc., for alleged gender discrimination in pay. These alleged pay disparities are explained by a wide number of non-discriminatory variables that aren’t easily captured in overly simplistic government statistics. The gender pay gap is the most blatant example of drawing false conclusions from incomplete data.

 To the detriment of workers, the DOL has determined that best way to protect against unfounded discrimination claims based on incomplete data is to have one-size-fits-all pay structures that fit neatly into the boxes on government reporting forms. The DOL uses a coarse ham-fisted statistical approach that dismisses sophisticated and elegant statistical data in favor of a “everyone gets paid the same” approach. This is obviously wrong – and wrongheaded.

When accounting for measurable, relevant factors, the statistical pay gap between men and women all but disappears.[1]  Differences in education, experience, choice of industry and occupation, career interruptions, and hours worked are not included in the Department of Labor’s statistical studies that explore the reasons for the gender wage gap. These excluded factors explain all but 5 cents of the so-called wage gap. Immeasurable components of compensation, such as flexible work schedules and in-kind benefits over wages, likely account for the remaining gap.

The DOL’s approach presents a concrete problem to the American working men and women that serves to reduce the availability of flexible work arrangements, which are especially important to working parents. It also leads to the elimination of performance-based pay, e.g., bonuses, that encourages and rewards individual excellence. Can anyone reasonably argue that excellence should be discouraged? Apparently, the DOL despises this effort in government contractors.

Jobs in some occupations and industries (e.g., logging, construction, manufacturing) are more physically unpleasant or dangerous than others: less than 10 percent of all workplace fatalities in the U.S. for 2017 and 2018 are female[2]. In order to attract potential employees, these high-risk male dominated jobs  must pay a significant wage differential that accounts for the dangerousness or unpleasantness of the work. Other jobs require specialized skills, education or expertise. Accounting for several observable characteristics shows women with the same skills doing the same jobs as men are paid the same amount.  If women, particularly working mothers, tend to place a higher value on some benefits than men do (such as more paid time off or better health coverage), this artificially expands the pay gap. These women accept lower pay in exchange for better benefits, but surveys asking about wages would report only the negative of lower pay. Obviously, market forces compel employers to set pay on the basis of factors that affect productivity. A hospital that paid its doctors and nurses the same wages as orderlies and janitors would find itself chronically understaffed—if it had any staff at all.

To put it in a way that would horrify the progressive elites – but one that may help better understand the absurdity of these lawsuit - let’s follow the DOL’s lead and propose that Meryl Streep shall by law only be paid as much as the Best Boy Grip receives for movies she appears in - and she must repay the wage gap difference between her and the lowest paid workers for her prior films.  Everyone gets paid the same in this DOL Worker’s Paradise!  Absurdist heresy? Certainly – but that is the functional equivalent of the DOL’s approach to gender pay equity in government contracting as evidenced by the Oracle lawsuit and other prosecutions.

Consequently, can anyone other than a fusty, nostalgic Communist pining for the bleak grayness of the Politburo’s salad days in the dehumanized 1970’s U.S.S.R. find it reasonable to expect that all men and women should all be paid the same, despite different levels of education and experience, working in different occupations, in different industries and with different benefit packages? Apparently, the worshipful progressive socialists at the DOL embrace this Party Line and gleefully file lawsuits based upon this premise.

These DOL policies are a holdover from the Obama-era mandate of “hope and trust” - hope for the best and blindly trust the government that knows better than you. In Obama's progressive government formulation, the government is not a tool for the people's use, but the very foundation upon which all of American prosperity is built. Obama’s was a progressive/socialist government shorn of transparency that laid claim to all successes and disavowed individualism. Genuine fairness, reason or wisdom seldom came into play when policy edicts were delivered to the unquestioning, obedient public. Who can forget: “if you've got a business, you didn’t build that”? In Obama’s political realm, government is not dependent upon the people, but the people are dependent upon the government  -  the opposite of Jeffersonian Democracy and the essence of socialism/communism.

The American People had best never forget this mindset that prevails in the Department of Labor. These lingering legacies of socialist ideology persist to undermine the principle of individual responsibility, which is undeniably the bedrock of liberty and American freedom. These socialist/communist ideological roots buried in the Deep State must be rooted out. 

The Trump Administration must awaken, and these lawsuits must be dismissed. The waste and inefficiency of his statistics driven, anti-business Dept. of Labor must be relegated to the rubbish heap of history, joining the Soviet Union, separate-but-equal and other groupthink vestiges of 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.