According to an ongoing Department of Labor (DOL) employment discrimination lawsuit claiming $400 million damages, software leader “Oracle had allegedly discriminated against and in favor of Asians.” This potentially ruinous absurdity flows from a complaint filed by DOL’s Office of Federal Contract Compliance Programs (OFCCP), a noted “administrative tyranny” that President Donald Trump’s administration should abolish.       

As a 2017 U.S. Chamber of Commerce report noted, OFCCP’s reviews of federal contractors often claim that the “same employer discriminated against both men and women or against and in favor of Asians” in different capacities.  OFCCP relies on a “disparate impact theory,” which “can find discrimination even in the absence of intent,” a “strictly numbers-based game of gotcha,” which former Associate Deputy Attorney General Bruce Fein has also analyzed.  OFCCP uses “simplistic, undigested pay disparities that ignore many relevant factors, including education, experience, choice of industry and occupation, hours worked, and flexible work schedules.”

In the Oracle case, OFCCP “treats employees with the same job title as similarly situated,” notes conservative activist Seton Motley, yet a “software engineer working on databases does very different work than one who develops artificial intelligence.”  OFCCP also found suspicious that 82 percent of Oracle technical hires were Asian compared to 75 percent of applicants.  “No one should be shocked,” responded legal analyst Paul Mirengoff, for Harvard University’s “acceptance rate of Asian applicants, based on objective criteria, would vastly exceed the Asian applicant rate.”  He added:  “In cases of extreme statistical disparities courts will infer discrimination from numbers alone.  Normally, though, anecdotal evidence is needed to buttress a statistical case.”

Oracle executives and spokespersons replied that OFCCP’s “politically motivated” and “meritless lawsuit is based on false allegations” while countersuing the federal government on November 27, 2019.  The Oracle complaint documented how a “group of unelected, unaccountable, and unconfirmed administrative officials have cut from whole cloth” OFCCP’s “adjudicative agency-enforcement scheme.”  This “violates fundamental constitutional principles.”    

OFCCP discrimination complaints go before a DOL Administrative Law Judge (ALJ) for adjudication and a party may appeal to a DOL Administrative Review Board (ARB).  “It is only after a contractor defends itself before an ALJ and the ARB, and has a final order entered against it, that it can seek review in” federal courts.  As an Oracle press release noted, OFCCP has a “broad and unfettered authority that the Department of Labor has assumed for itself to investigate, prosecute and adjudicate lawsuits entirely in-house.”

OFCCP unilaterally promulgated this authority after 1977, even though Congress had refused to give such powers to the Equal Employment Opportunity Commission (EEOC), which prosecutes private employment discrimination in federal courts.  When proposals rose in 1972 to grant EEOC such powers, Senator Peter Dominick warned against recreating 16^th-century England’s notorious Star Chamber.  The “EEOC would, in effect, become investigator, prosecutor, trial judge and judicial review board -- all before you ever got to the Court of Appeals!”

Companies “typically negotiate some type of consent decree with OFCCP to avoid the staggering costs of litigation and the prospect of bankruptcy,” Fein has noted.  Moreover, the Chamber of Commerce has observed, OFCCP investigations bring “attendant negative publicity” as well as the possibility of debarment, or suspension from federal contracts, a penalty that can occur even during an audit.  “For companies in industries where the federal government is the only or main customer, debarment can mean extinction,” conservative writer Brian McNicoll has noted.

Unsurprisingly, power has corrupted OFCCP, which the Chamber of Commerce has described as having “lost its way, increasingly relying on abusive enforcement tactics.”  OFCCP investigators have told contractors that the “judge works for us” and “we can ask for anything we want.”  OFCCP therefore “engages in overly broad and unreasonable fishing expeditions for employment data,” such that OFCCP in discovery demanded more than 85 million data sets from Oracle.  Mirengoff also decried OFCCP’s “lack of transparency.  Not only does the OFCCP refuse to show its statistical findings to contractors it accuses of discriminating, it often refuses even to disclose its methodology.”

Fein has found particularly “dumbfounding” that OFCCP’s pursuit of Oracle has continued under Trump, for OFCCP lawyers originally filed the lawsuit on January 18, 2017, President Barack Obama’s waning hours in office.  “Obama’s cabal of partisan lawyers drew up a series of midnight regulations to sabotage the incoming administration: bogus last-minute lawsuits they knew would serve as political time bombs,”  according to political operative Jared Whitley’s analysis.  “Data can always be massaged for political purposes,” the Wall Street Journal editorialized, and the Obama administration had had “similar paint-by-numbers attacks.”  Activists would “rewrite civil-rights and labor law according to the left’s identity politics.”

Yet, as disappointed leftists have already complained, the Trump Administration has undertaken to tame DOL, with proposals to transfer OFCCP functions to EEOC and the September 30, 2019, appointment of Secretary of Labor Eugene Scalia.  Institute for Liberty President Andrew Langer has praised Scalia’s “reputation for being an advocate for pro-growth policies” and thus Fein has called for Scalia to “concede Oracle’s claims.”  The time finally has come for Trump to drain OFCCP’s swamp.