Trump DOL Should Not Prosecute Obama's Lame Duck Lawsuits
It is hard to believe that the administration of President Donald J. Trump has let one liberal agency within the Department of Labor run wild. Progressive lawyers started politically motivated lawsuits in the last hours of the Obama Administration that live on today, and for some unknown reason, the Trump Department of Labor is allowing them to continue. If allowed to stand, these lawsuits will be a hammer used for years to come to transform America into a nation that uses statistics to prove evil intent.
The out of control agency is the Office of Federal Contract Compliance Programs (OFCCP) and they have pursued an aggressive agenda to prosecute government contractors who they believe have discriminated in promotions and hiring. There is one problem with these lawsuits — they have no actual evidence of discrimination. The OFCCP relies on statistics in promotions and hiring to prove discrimination. This is a strategy that would give the government unbridled power to second guess corporate governance and put the private sector under constant fear of prosecution if they did not hire and promote using statistical data, as opposed to education, performance, and leadership capabilities.
The test case for the Obama lawyers was against the company Palantir and allegations that they discriminated against Asians in hiring decisions. The company was forced to settle for $1.7 million even though they did not admit any fault. The Guardian reported on April 26, 2017, “The DoL suit, which sought lost wages, said that from a pool of more than 1160 qualified software engineer applicants, approximately 85 percent were Asian, but the company hired 14 non-Asian employees and only 11 Asian people. And even though a majority of qualified intern applicants were Asian, Palantir hired four times as many non-Asians as Asians, the suit said.” No emails or witnesses were produced to prove that management staff acted with ill intent. No testimony, texts or emails containing a plan-to-discriminate were produced, because these lawyers wanted to set a precedent that no real evidence is needed to prove discrimination.
The progressive lawyers next accused Google of discriminating against women. CNet reported on April 8, 2017, “US Department of Labor said search powerhouse Google systematically pays its female employees less than it pays men — a charge the company strongly denied.” The feds went into court to demand more data from Google to help prove the allegation of discrimination. In December of 2017, a class action lawsuit against Google was tossed out of court that relied on the same statistical data used by the Department of Labor to attack Google. Google told CNNMoney its own analysis of its employees' compensation showed it had no gender pay gap, citing it pays women 99.7 cents to each dollar a man receives. The Department of Labor’s means to prove discrimination, if allowed to stand, would open the door for lawyers to harass big business in an effort to use statistics to extort settlements.
Oracle is in the same boat. They were the subject of a lawsuit filed in the last two days of the Obama Administration that used statistics to allege that Oracle discriminated against women and people of color. Former disgraced Secretary of Labor Alexander Acosta allowed the Trump Department of Labor to sue in federal court for $400 million claiming that Oracle used prior salaries to set pay and pushed minorities into career tracks with lower pay. CNBC reported that Oracle Executive Vice President and General Counsel Dorian Daley said, “This meritless lawsuit is based on false allegations and a seriously flawed process within the OFCCP that relies on cherry picked statistics rather than reality.” Again, statistics used to prove discrimination.
Oracle recently fought back with their own lawsuit making the case that the OFCCP does not have any authority under the law to push these lawsuits. Progressive lawyers want these suits to be successful because if they can use statistics to sue for discrimination, they can sue every single big corporation in the country and manipulate statistics to get companies to settle even the most ridiculous suits. This would be a new business opportunity for trial lawyers, yet it would take money out of the productive sector of the economy and it would slow economic growth.
The business community hopes new Secretary of Labor Eugene Scalia, who has a strong record of standing up for the Constitution and the separation of powers, will not worry what Big Labor and Senate Democrats think. Unlike Sec. Acosta, Scalia should recognize that there is nothing in law that allows Obama holdover attorneys to harass business with lawsuits based on nothing more than statistics. The irony is that the OFCCP was intended to help out government contractors to comply with affirmative action goals, yet the agency has become a pack of wild lawyers intent on using the power of government to leverage a permanent progressive seat at the corporate governance table.
President Trump needs to drain the Department of Labor of left-wing Obama holdovers to free up companies from the prospect of frivolous lawsuits.
Jerry Rogers is the founder of Capitol Allies and the host of “The Jerry Rogers Show” on WBAL NewsRadio. Twitter: @CapitolAllies.