The Real Tyranny in Government Affirmative Action Cases

On November 29, multinational tech company Oracle filed suit in the United States District Court against Secretary of Labor Eugene Scalia and Office of Federal Contract Compliance Programs (OFCCP) Director Craig Leen. The complaint alleges the OFCCP’s enforcement and adjudication protocols violate the Constitution, the Civil Rights Act of 1964, and the Equal Employment Opportunity Act of 1972, among other things.

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Scalia should overhaul OFCCP’s procedures to align with due process. And President Trump should direct other executive agencies to ensure their enforcement practices comply with procedural due process. {snip}

The OFCCP in the U.S. Department of Labor acts as legislator, prosecutor, judge, jury, and appellate court in the enforcement of Executive Order 11246. The decree, signed by President Lyndon Johnson in 1965, mandates not only nondiscrimination but also affirmative action by federal government contractors, including the elimination of employment standards with a disparate impact on minorities or women.

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The nondiscrimination-affirmative action standards of the OFCCP were decreed by the executive branch alone. The executive prosecutes and adjudicates alleged violations. The executive imposes sanctions, including fines or permanent disbarment from future federal government contracts—a death sentence for many companies. For them, discretion is the better part of valor. They typically negotiate some type of consent decree with OFCCP to avoid the staggering costs of litigation and the prospect of bankruptcy. That explains the dearth of suits challenging its administrative tyranny.

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The Trump administration’s defense of OFCCP’s administrative tyranny is dumbfounding. Two days before President Donald Trump was inaugurated, the U.S. Department of Labor filed a lawsuit against Oracle America, Inc. alleging systematic compensation discrimination against female, African-American, and Asian employees compared with their Caucasian male counterparts. {snip} The OFCCP’s discrimination theory relies on simplistic, undigested pay disparities that ignore many relevant factors, including education, experience, choice of industry and occupation, hours worked, and flexible work schedules. OFCCP is attempting to resurrect a standard of equal pay for work of “comparable value” which the Supreme Court largely dismissed in County of Washington v. Gunther (1981).

Administrative tyranny was born of the fears of the Great Depression that something—anything-must be tried to alleviate economic hardship. Time-honored procedural safeguards succumbed to the tyranny that the ends justify the means. But violations of the Constitution’s separation of powers are not legitimated by longevity.

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