The Wall Street Journal
July 1, 1996
Bureaucratic Carpet Bombing
By James Bovard
The Office of Federal Contract Compliance Programs, a little known but extremely powerful branch of the Department of Labor, is America’s premier racial racketeering agency. OFCCP Director Shirley Wilcher declared last year, in the settlement of a case involving a California computer chip manufacturer, “Enforcement of equality in the work place includes penalties to deter violations and to get results as quickly and efficiently as the law permits.” Not equality of opportunity — not equal chances for equal talent — but equality, plain and simple, by hook or by crook.
The OFCCP enforces affirmative action obligations on federal contractors. For many products, the federal government is a monopoly buyer; private companies that produce those products have
a choice of meeting the government’s demands or perishing. More than 200,000 companies and institutions with more than 25 million employees are subject to the OFCCP’s racial and gender
dictates. The OFCCP’s more than 500 compliance officers conduct over 4,000 compliance reviews a year.
“The OFCCP as it now operates is a racial spoils system,” says Peter Kirsanow, a Cleveland labor lawyer. “For a long time we just called them the Office of Racial, Sexual and Ethnic Engineering.”
According to former OFCCP Director Ellen Shong Bergman, the agency’s officers are sometimes guilty of “attempted extortion” in their threats against businesses that fail to hire and promote
sufficient minorities and women.
The OFCCP’s routine methods amount to bureaucratic carpet bombing. Jennifer Taylor, personnel director of City Utilities of Springfield, Mo., testified to the House Committee on Economic and Educational Opportunities on Feb. 29 about the nightmare OFCCP audit her company experienced last year. An OFCCP compliance officer descended upon the company and spent
almost an entire year going through its files. The official demanded “documentation and reasons why virtually every minority and female considered for promotion and new hire was not selected
for nearly every opening,” Ms. Taylor testified. Though the company had roughly the same proportion of minorities on its payroll as in the local labor market, the OFCCP demanded that the
company in the future recruit from the Kansas City area — 170 miles away.
OFCCP’s policies can result in dumbing down the work force. Former Director Bergman noted that one OFCCP district director penalizes contractors for “failure to select a woman, black or
Hispanic who is as qualified as the least qualified incumbent, irrespective of superior qualifications of other nonminority applicants.” With this standard, the OFCCP seeks to drag down the company’s hiring to the lowest level of any current staffer.
Many OFCCP compliance officers abuse their power at the work site. According to one industry attorney, an OFCCP district director in California shows up at site visits and warns the contractor:
“If you get a lawyer, I will make it more difficult for you.” The director has proclaimed to harrowed employees during audits: “You won’t have a job around here much longer unless you
cooperate with us because you are in deep trouble.” Contractor employees have been left in tears by the OFCCP district director’s bullying.
Since 1991, the OFCCP has been on a jihad against the so-called glass ceiling — invisible “attitudinal” barriers to the advancement of women and minorities into the top ranks of corporate power. Earlier this year, the OFCCP sent a notice of violation to the University of Cincinnati instructing it to inform 157 faculty members that “they are part of a group of female and minority professors whose salary should be adjusted.” Even in cases where one professor had a doctorate degree from an Ivy League school and another had a master’s degree from Ball State, or one had 20 years’ experience and another was a new hire, the OFCCP made no adjustment in comparing salaries.
One of Washington’s most experienced private sector labor lawyers observed of the method used in this audit: “They do that all the time. They see this as a quick and dirty way to collect a lot of
back pay from institutions that are very dependent on government contracts.” The OFCCP’s glass ceiling methods are routinely characterized as “blackmail” by labor lawyers.
OFCCP Director Wilcher declared last year: “OFCCP’s enforcement statistics provide a testament to the continuing problem of discrimination in America: Back pay and other remedial relief worth
nearly $40 million for 11,000 victims of discrimination were obtained in settlements in 1994 alone.”
However, the OFCCP’s numbers are as fraudulent as a three-dollar bill. According to lawyers and company executives, in a 1994 case involving Humphrey, Inc., a Southern California defense contractor, agency officials exaggerated the settlement by five-fold; in a 1995 case involving Carolina Steel of Greensboro, N.C., the agency overstated the settlement by 150%; in
another case last year involving Oklahoma State University, the OFCCP exaggerated the settlement by including $36,000 from a private lawsuit that had nothing to do with its investigation.
Government contractors rarely challenge OFCCP power grabs. “Everybody knows what is going on,” says Wayne State University Law Prof. Kingsley Browne. “The problem is that the business
community has been completely spineless on this issue.”
Then-Sen. Bob Dole and Rep. Charles Canady (R., Fla.) proposed the Equal Opportunity Act of 1996, a bill prohibiting the use of racial and gender preferences in federal government programs.
The bill would gut the OFCCP’s power to impose racial hiring goals. If the Republicans ever decide to wake up and champion the principle of freedom, the Dole bill would be a fine place to begin.
—Mr. Bovard is a visiting media fellow at the Hoover Institution. This article is adapted from the July issue of The American Spectator.
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