Disparate Impact Theory Strikes Again

There’s nothing quite like the pretzel logic of the Left.  Take the kernel of a good idea - the equal protection clause of the 14th Amendment - and twist it into something completely unrecognizable and monstrous.  Thus we arrive at the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) which often takes enforcement actions against the same employer for discriminating against both men and women, or against and in favor of Asians.  Wow, that’s some pretzel.

Not only that, OFCCP is judge, jury, and executioner in flagrant violation of separation of powers principles laid down by our Founders in the U.S. Constitution.  OFCCP investigates, prosecutes, and judges cases entirely in-house. 

Equal protection has gone off the rails, thanks to disparate impact theory, a numbers game that purports to find discrimination purely on the basis of statistics, that is, unequal outcomes across various demographic groups.  No actual evidence of discriminatory intent is required.  Intent is simply proclaimed if men are paid more than women regardless of other factors, or if Asians are hired in greater numbers than their percentage of the population. 

OFCCP brought a complaint against Oracle alleging pay discrimination against female, black and Asian employees, then demanded 85 million datasets from Oracle in discovery in the case.  OFCCP is notorious for other abusive practices, such as refusing to show the contractors it sues its statistical findings or even its methodology.  OFCCP’s analysis is simplistic, for example, treating all employees with the job title ‘software engineer’ alike even though the work of a software engineer assigned to databases is doing very different work from one who is developing artificial intelligence.  OFCCP’s simple-minded theory also disregards education, experience, personal job choices, the number of hours worked, and flexible work schedules in its quest to level the workplace and make everyone equal.

Oracle has counter-claimed, arguing the separation of powers issue, among other things.  There is also a Due Process issue with having a self-interested tribunal that is not impartial or neutral.  It’s a constitutional problem if you make the decision or set the punishment in a case your colleagues brought in the first place.

The complaint against Oracle was brought two days before President Trump was inaugurated, but continues under his administration.  The Trump administration has talked about shutting down OFCCP and transferring its functions to the EEOC.  The administration also proposed, over a year ago, to uproot disparate impact theory from all federal agency adjudication, but the proposal doesn’t seem to have gone anywhere. 

But it should.  As I wrote in a Constitution Minute in March 2019, disparate impact theory is a concoction of left-wing bureaucrats that “turns the presumption of innocence on its head and is manifestly unjust.  Not every statistical difference is about race.  The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.”