We’ve all done something wrong. Watch us long enough and you’ll find us running a red light or making a U-turn where it’s prohibited. Luckily, nobody would accept it if the local police department tried to subpoena every car’s records and determine whether it had ever been used to break a traffic law. Americans know we cannot be forced to testify against ourselves in that way.
The same principle holds in a large organization. There’s no doubt that, from time to time, somebody in just about any company is doing something wrong, whether intentionally or by mistake. That doesn’t excuse such behavior, and most organizations do all they can to root it out and put a stop to it. Still, as with the driving example, we cannot expect every company to hand over piles of records so government examiners can go through them and try to find shortcomings. We rightfully expect the government to make a good case first and then go through a legal process if it wants to read through a company’s records.
Well, we usually do that. Sometimes an overzealous government goes too far, as the Department of Labor is doing right now.
In the final days of the Obama administration, the bureaucrats in The Office of Federal Contract Compliance Programs decided to file a series of lawsuits against government contractors, including some leading high-tech companies. The goal was to force them to hand over paperwork. This paperwork might show evidence of discrimination in employment. Or, it might show there was no discrimination in employment. The government didn’t have any specific allegations of discrimination to investigate. It just wanted to fish for information and see if any information turned up.
“Filed with the department’s Office of Administrative Law Judges, the lawsuit seeks to enforce Google’s obligations to provide OFCCP with compensation data, documents and requested information to complete its audit,” the office wrote in a news release about its lawsuit against Google. Again, it’s not basing the action on allegations of wrongdoing. It just wants to pour through paperwork and see if it can find any wrongdoing by a company that’s known for its liberal values and slogan “don’t be evil.”
OFCCP has been engaging in such games for years.
In 2017, a report from the U.S. Chamber of Commerce called the agency out. “OFCCP is too often antagonistic toward the regulated community, ignores the myriad and effective diversity efforts undertaken by contractors, engages in overly broad and unreasonable fishing expeditions for employment data, and pursues take it or leave it conciliation efforts. It is no stretch to say that many of these tactics have employers questioning whether they want to perform work for the federal government,” the report said.
Furthermore, the Chamber found that OFCCP was often overzealous in its requests. “We can ask for anything we want,” it has informed contractors. And when asked whether an administrative law judge might rule against it, OFCCP told a company that “the judge works for us.” That might explain the judge’s decisions.
The Chamber recommends that OFCCP “return to its core mission of fostering true affirmative action by federal contractors and subcontractors” and “abandon its transformation to an opaque, plaintiff-style enforcement agency, purposefully hostile to the contracting community and singularly focused on issuing findings of discrimination, often where none exist.” Since it clearly won’t do these things on its own, though, the Trump administration should take action.
Secretary of Labor Eugene Scalia can rein in the bureaucracy and end the harassing lawsuits against Google, Oracle and others. He should also insist that any future actions be based on solid evidence, not mere speculation and fishing expeditions.
Americans are innocent until proven guilty. The same thing must apply to companies, as they work to do the right thing and comply with our anti-discrimination laws.