Tuesday, May 19, 2020


Even as the COVID-19 crisis dominates the headlines, the business of government continues. President Trump and his administration are to be commended for the ways they’ve cut federal red tape to ease the burden on the private sector as it responds to the crisis, searches for a cure and develops a vaccine.

It would be nice if that effort spilled over into other aspects of what the government does, particularly where policies imposed by the Obama administration on its way out the door remain in effect. A politically competent administration would have that cleaned up long ago. Mr. Trump’s White House, still finding its sea legs with just months to go before voters go to the polls, still has a lot of work to do.

Over at the U.S. Department of Labor, the Office of Federal Contract Compliance Programs (OFCCP), which promotes affirmative action among contractors doing government work, is still using Obama-era rules allowing statistical analysis of hiring and promotion data alone to sue companies it alleges commit discrimination based on race.

As we’ve learned during the COVID-19 crisis, reliance on statistics alone can lead to bad decisions as it has in Oracle v. U.S. Department of Labor, which was rolled out two days before Mr. Obama and Labor Secretary Tom Perez — now the chairman of the Democratic National Committee — left office.

The case and others like it involved high-tech companies accused of discriminatory wage practices based on statistical analysis alone without any evidence anything of the kind had occurred. It should have been quashed the first week the new team was in place.

Allowing lawsuits like these to go forward harasses business, extorts cash that somehow always seems to end up in the coffers of so-called social justice groups whenever a settlement is reached and conflicts with Trump policies in other areas that, before the pandemic hit anyway, augured the arrival of a strong period of economic growth.

Policy experts in this area have urged Labor Secretary Eugene Scalia — who, as a former solicitor of Labor surely understands the department’s authority to pursue these suits is at best questionable — to terminate them. Instead, the current solicitor, Kate O’Scannlain, has allowed them to continue.

We can’t understand why. The evidentiary system is basic to American jurisprudence especially when, as the old saying goes, “Figures don’t lie but liars can figure.” To allow the manipulation of numbers alone to stand as proof of discrimination will lead to hundreds if not thousands of lawsuits and potential lawsuits that will enrich the trial bar and the organized American left while doing nothing for workers — including those who experience actual discrimination on the job site in matters of pay, promotion and other areas of compensation.

What’s made things worse is that the organized left has engaged in the fight the right continues to dither. Groups like Democracy Forward, which was founded for the specific purpose of using the courts to force the Trump administration to keep the policies of his immediate predecessor in place and is whose staff is populated with veterans of the Obama administration, Team Clinton and other prominent Democrats are taking steps to achieve what they were set up to do.

The group brags online they’ve already filed 100 suits with this objective in mind. Along with the National Women’s Law Center, it filed a motion to intervene in the Oracle case in mid-March to defend the OFCCP’s enforcement authority on behalf of the Communications Workers of America and the United Steelworkers.

What could have been settled quietly has now become a battle royale, one the good guys will probably have to spend considerable political capital to win. Thanks to the Department of Labor’s failure to act sooner, any victory achieved in the short-term may turn out to be pyrrhic in the long run. Even if the policy is changed, those who advocate for a statistics-only approach to discrimination claims could go back into court and find a judge who will affirm it as sufficient to prove discrimination. That might be upheld on appeal, dragging it out further, until it gets before the U.S. Supreme Court which, given the current lineup, would likely find it unconstitutional. But at what cost?

In the meantime, there’s no guarantee Congress might not come along and pass something that would legitimize the statistics-only approach in U.S. law — something a president who isn’t Donald Trump would likely sign. There are a lot of lessons here for Mr. Trump and future administrations, but the most important one is to take care of problems early, before they fester and grow, and the fix becomes costly indeed.

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