Commentary

Obama-Era Affirmative Action Lawsuit Threatens Economic Growth

By Brittany Todd | July 14, 2020 | 9:46am EDT
Pictured is the 44th president of the United States, Barack Obama. (Photo credit: BRENDAN SMIALOWSKI/AFP via Getty Images)
Pictured is the 44th president of the United States, Barack Obama. (Photo credit: BRENDAN SMIALOWSKI/AFP via Getty Images)

In the midst of COVID-19 economic recovery efforts, an Obama-era scheme is hijacking the Trump administration’s growth agenda. 

In 2009, the Office of Federal Contract Compliance Programs (OFCCP), a newly independent division of the Department of Labor (DOL), was tasked with promoting affirmative action, but what began as a neutral partnership between the DOL and federal contractors evolved into an adjudicatory scheme in which the OFCCP would demand hiring and promotion data, perform a shoddy statistical analysis, and sue for discrimination using cherry-picked data.

In the days and weeks leading up to President Donald Trump’s swearing in, the DOL rolled out a series of lawsuits against Google, Palantir Technologies, and Oracle America. A last-ditch effort to further the Obama administration’s economically destructive policies, the far-left, bureaucratic lawyers of the DOL based their allegations not on actual complaints of wrongdoing, but on cherry-picked employment data, gleaned during overly broad and intrusive fishing expeditions. 

Google, accused of underpaying women, fought against turning over two decades worth of data until the DOL dropped the lawsuit. Palantir, without any admission of guilt, reached a $1.6 million settlement for allegedly discriminating against Asian applicants. Oracle, accused of similarly unfounded discrimination (including favoring Asian applicants), is still fighting. 

The California-based technology company is looking at a $400 million punishment for “paying Caucasian male workers more than their counterparts in the same job title, which led to pay discrimination against female, African American and Asian employees.” Again, that is not based on actual complaints, but on the OFCCP’s cherry-picked statistical analysis. 

Far from discriminatory, Oracle’s CEO is a woman, almost a third of its board members are women, and the company’s myriad diversity and inclusion initiatives are the stuff of liberal dreams. The DOL’s reliance on simplistic government data over performance reviews, job title shifts, and diversity efforts that are not so easily measured is nothing short of progressive legal activism. They wanted to find discrimination, so they found it. 

It’s unclear why Kate O’Scannlain, the Trump Administration’s solicitor of Labor, has allowed this baseless lawsuit to continue. Department of Labor Secretary Eugene Scalia, too, has the power to withdraw the pending lawsuit against Oracle and abandon the practices that led to actions against Google, Palantir, and Oracle in the first place. Neither has acted.

This is troubling for a few reasons. For one, the OFCCP’s harassment of American businesses runs contrary to Trump’s push to expand economic growth, and two, the OFCCP is not authorized under federal law to pursue lawsuits against contractors. That power lies elsewhere. 

The U.S. Chamber of Commerce and six states have joined Oracle in a lawsuit that says just that. In its Nov. 27 filing against the DOL, Oracle refers to the OFCCP’s adjudicatory scheme as a “power grab” and a violation of the U.S. Constitution. If the courts agree, the progressive legal activism of Obama DOL holdovers will end. 

But Obama’s deep state operatives aren’t backing down. Democracy Forward, a litigious, far-left organization that frequently sues the Trump administration, is intervening in the suit under the pretext of "defend[ing] nondiscrimination protections.” The political motivation of the radical former Democrat operatives who run Democracy Forward is clear: Uphold the Obama-era status quo—anti-business, anti-growth. 

The U.S. economy is on a slow recovery from the shock of the COVID-19 pandemic and government response.  Shutting down the economy hurt growth, and we are slowly seeing the bounce back. Now is a great time to take a hard look at government policies that will further slow the rebound like the Obama-era government lawsuits based on unfounded legal grounds. 

Conservatives are calling on Secretary Scalia to withdraw the pending lawsuit against Oracle, clearing the way for further reform and streamlined labor laws that support President Trump’s economic growth agenda. 

Brittany Todd is a former GOP operative and policy researcher. She lives in St. Louis, Missouri. 

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