“The question raised by the OFCCP’s actions isn’t whether discrimination claims should be tried and adjudicated; they should be. The question is by whom and under what lawful standard.”
—Cory Andrews, WLF Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC—On May 1, Washington Legal Foundation (WLF) joined a coalition of leading business groups and nonprofits as amici curaie to urge a federal district court to invalidate the U.S. Department of Labor’s unusual regime for trying discrimination claims against government contractors. The coalition amicus brief was drafted by Jeffrey M. Harris and Alexa R. Baltes of Consovoy McCarthy PLLC.

The case arises from a suit by Oracle, a leading technology company and government contractor, against the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP). Under the agency’s current enforcement system, discrimination claims against government contractors are not prosecuted in federal court but rather by the OFCCP itself, which has assumed for itself the right to investigate, prosecute, and adjudicate discrimination claims against government contractors.

As the amicus brief makes clear, however, no federal law authorizes the OFCCP’s extraordinary enforcement regime. In fact, Congress has expressly declined to give agencies, such as the Equal Employment Opportunity Commission (EEOC), the broad and unfettered authority to investigate, prosecute, and adjudicate discrimination lawsuits entirely in-house.

What’s worse, the OFCCP’s arbitrary enforcement actions often lack any evidentiary foundation. All too often, OFCCP claims are premised on a blunt statistical calculus that views every disparity as evidence of discrimination, without controlling for nondiscriminatory factors that would justify the disparity. Such suits do little more than coerce exorbitant settlements from businesses unwilling to risk losing the right to contact with the federal government.  

Celebrating its 43rd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.