Does the U.S. Department of Labor Really Look for Discrimination?
By: Michael Busler
Tags: Government, Politics, Money, Economics, Technology

Does the U.S. Department of Labor Really Look for Discrimination?

There is a difference between actual data and statistical inference.

It’s never too late to do the right thing. But, for the Trump administration, time is running out on this first term. There are things that must be done quickly.

For example, the administration needs to focus on eliminating discrimination. As marchers fill the streets and pull down statues, it is painfully clear that the federal government hasn’t done enough in this arena.

However, “doing something” about discrimination is different from “doing the right things” to eliminate discrimination. If the federal government throws its limited resources into ineffective methods, it will waste time and money, and end up doing nothing to stop discrimination. It must focus on real problems and work to fix them.

One example of a wasteful program that should be shut down is being run by a group of Obama-era holdovers at the Department of Labor.

The Office of Federal Contract Compliance Programs (OFCCP) is under the Department of Labor. OFCCP is supposed to promote affirmative action by federal contractors. That means just about anyone who sells anything to Uncle Sam, so no company can afford to get on the wrong side of OFCCP. It’s an important mission, and current events highlight that it needs to be done correctly.

However, instead of zeroing in on easily identifiable discrimination, OFCCP goes hunting for it using statistical analysis of hiring and promotion data. The goal appears to be to generate headlines, allowing the government to harass contractors into settling out of court. If necessary, OFCCP will sue, just to bring the power of bad publicity and negative public opinion against successful companies.

This isn’t simply an academic discussion. There are actual lawsuits, dating to the previous administration, some of which are still bubbling around in the courts.

The targets, in this case, include some of the most progressive and important companies of the 21st Century. In the final days of the Obama administration, OFCCP filed suit against Palantir, Google and Oracle. Some of these companies find that it is easier to settle the case than to fight the government in court, and that is what Palantir did.

Oracle, however, is pushing back in every way it can. That’s because the government is making a ridiculous argument. OFCCP never compared the duties, skills and responsibilities of similarly situated employees at Oracle to determine whether there might be discrimination. That’s an important omission because such a comparison is required by law.

Instead, federal bureaucrats used statistical analysis, which results in an inference, to try to show there were probably fewer minorities in particular positions than it insisted there should be. This is no substitute for actual evidence of discrimination. The Department of Labor also ignored performance reviews and shifted actual company job titles to make it seem that there may be discrimination.

The case study of Oracle shows that the OFCCP is not abiding by existing law and has made baseless claims against the company. Yet the suit continues, dragging Oracle through courts and dragging the good name of an important high-tech company through the mud.

It is far past time for a change.

The Trump administration needs to fix OFCCP so it focuses on its important mission of stamping out actual discrimination. The agency must back away from the unconstitutional power grab that led to these continuing legal actions. Congress has not authorized this type of investigation, and by keeping these cases open, the agency is undermining the administration and turning the focus away from actual reform, which is the real crackdown on discrimination that this country needs.

Before the end of the month, Labor Secretary Eugene Scalia should audit his agency’s OFCCP and tell it to eliminate enforcement actions that are based on nothing more than inferred statistical evidence. There is plenty of actual discrimination all around us. The federal government should focus on eliminating that, as quickly as possible.