- - Monday, December 16, 2019

President Donald J. Trump must not know about the Office of Federal Contract Compliance Programs (OFCCP) because if he did, he wouldn’t like what’s going on there at all.

The agency’s job is to enforce the affirmative action and nondiscrimination requirements of federal contractors — to ensure employees are treated fairly and minority contractors have a shot at winning federal contracts. 

These are largely laudable goals, and a federal agency that kept an eye on contractors and worked with them to address problems in a cooperative manner would be an asset to Americans.

But that’s not what they’re getting.

According to a report from the U.S. Chamber of Commerce, they’re getting an agency that seeks splashy prosecutorial headlines, that focuses on securing high-dollar settlements, is frequently antagonistic toward the community it regulates, forceful and unyielding in its negotiations and given to fishing expeditions that force companies to produce voluminous employee data.



They’re getting an agency that regularly demands employers produce enormous amounts of data on extremely short notice and won’t work with employers to narrow requests to the data actually needed. 

The agency told one contractor he was welcome to bring a matter before an administrative law judge, “but the judge works for us.” It told another “we can do anything we want.” It told still others they had to turn over emails on the company system, an ominous threat to privacy and propriety. Even the IRS is easier to deal with, contractors informed the Chamber.

Moreover, the OFCCP has what amounts to judicial authority over contractors. It can debar them or disqualify them from winning federal contracts. For companies in industries where the federal government is the only or main customer, debarment can mean extinction.

Compounding this problem is the fact that former Secretary of Labor Alex Acosta did not drain his particular swamp, and Obama holdovers continued to set the agenda. In the final days of the Obama administration, the agency rolled out a series of lawsuits that alleged pay and hiring discrimination. It is the hope of industry that the new Secretary Eugene Scalia rights the ship.

There is no actual evidence of discrimination in any of these cases, which involve, severally, Google, Oracle and Palantir, a firm that provides software and data analysis to federal government. There is only statistical analysis that shows either that women in parts of these firms don’t earn as much as men or that some ethnic groups are underrepresented. 

That’s a problem because research shows that, when it comes to compensation, women value in-kind benefits, as opposed to cash, more than men, and factors such as education, experience, choice of industry and occupation, career interruptions and hours worked account for nearly all the pay gap between women and men. 

Which means saying a company pays men more than women cannot and should not itself be viewed as discriminatory. It is possible — indeed likely in these cases — that no one was discriminated against, and it is definite that workers are hurt by this arbitrary and severe enforcement.

Again according to the U.S. Chamber, companies are responding to this by adopting one-size-fits-all pay policies, which likely hurt the chances of women finding job sharing and other flexible work arrangements and prevent companies from rewarding higher-performing employees with additional pay and bonuses.

That comment about the judge working for the agency has caught the eye of Oracle as it attempts to fend off a $400 million federal pay discrimination suit brought by the Office of Federal Contract Compliance Programs. The charges were based on data that showed that 75 percent of the applicants for one technical position were Asian but 82 percent of the people who held that position were Asian. This translated — for the agency — to non-Asian applicants being discriminated against.

In late November, a week before the firm was to appear before a Department of Labor administrative judge to argue its case, Oracle sued the department, claiming its enforcement amounted to it acting as judge, jury and executioner — that it had the power to drive a company into bankruptcy before it could see the inside of a courtroom. 

“The issue here — and what Oracle objects to — is the unlawful, agency-originated and agency-based administration-enforcement and adjudicative regime to which Oracle and other government contractors are currently subject,” Oracle’s lawyers wrote in their complaint.

The judge in the lawsuit already has suggested the agency seems more interested in racking up a victory than actually enforcing the law and helping people who were victims of discrimination. 

President Trump has staked his political career on reducing regulations and the cost of doing business in the United States. This doesn’t seem consistent with that goal, and it’s time for the president to find out why this is and who is responsible. 

• Brian McNicoll, a freelance writer based in Alexandria, Va., is a former senior writer for the Heritage Foundation and former director of communications for the House Committee on Oversight and Government Reform.

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