In 2016, when Donald Trump was just candidate Trump, he pledged to focus his attention on eliminating job-killing regulations, burdensome red tape and ending President Obama’s economically disastrous assault on job-producing American businesses.
Trump pledged that “for every new federal regulation, two existing regulations must be eliminated.” And through executive orders, Trump has made good on that promise, and then some.
At last count, the administration eliminated 8.5 regulations for every new rule enacted.
But despite all of Trump’s success when it comes to slashing ridiculous regulations, one of the Obama administration’s most damaging legacies still terrorizes U.S. companies.
In the final days of Obama’s tenure, federal agencies unleashed an avalanche of “midnight litigation.” This barrage of lawsuits created an abnormal, legally unorthodox precedent and failed to address any existing threat toward the health or safety of Americans.
Unfortunately, even though the Trump administration has the authority to drop these shady suits, many of them still live on today, wasting precious tax dollars, burdening the legal system and siphoning resources from some of our nation’s most important employers.
Obama’s midnight litigation plan included a number of unreasonable and, by all accounts, totally bogus lawsuits by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) against federal contractors.
These suits alleged that tech companies, including Google and Oracle, were involved in racial and gender discrimination related to hiring, salary and promotion decisions.
Despite the fact that no employee or minority job candidate brought any claims of discrimination, the lawsuits were nonetheless filed. There also appears to be no verifiable proof that any affirmative-action based rules were violated by the targeted companies in the suits.
The only basis the government had for initiating the suits were spreadsheets.
Government contractors were forced to hand over thousands of pages of hiring and promotion statistics to the OFCCP. The agency would then create data to bolster its fabricated claims that racial and gender discrimination occurred, even though there was never an actual victim. That data was then used to launch the lawsuits.
In one discrimination lawsuit filed two days before Trump officially took the oath of office, the Obama administration alleged
The lawsuit seemed to contradict itself when it also claimed that the Silicon Valley tech firm “favored Asian workers in its recruiting and hiring practices.” There were never any complaints that either preferential discrimination ever occurred.
Now, more than three years later, the OFCCP’s flimsy case against Oracle is still finding its way through the legal process — costing Oracle and American taxpayers millions in wasted dollars along the way.
But Oracle wasn’t alone in this unwarranted targeting by the OFCCP’s last-minute lawsuits.
Data analytics firm Palantir Technologies paid a $1.7 million settlement to end an unfounded discrimination suit. The company determined it was easier to take the “loss” than spend years and millions of additional dollars fighting the case in court.
Google was also blindsided with midnight litigation claiming the leading global search engine was biased against women based on the numbers that the OFCCP spit out of a spreadsheet. The company eventually won its case after a costly and protracted legal battle.
But Google, which makes its gender pay information publicly available and has been lauded for paying female employees 99.7 cents to each dollar a male received, was publicly humiliated by the sham accusations.
As the Obama administration began its midnight litigation campaign, a coalition of think tanks, taxpayer advocacy organizations and legal groups — including Frontiers of Freedom, the Heartland Institute, the Competitive Enterprise Institute and Americans for Tax Reform — wrote an open letter urging the incoming administration to immediately revoke the midnight litigation once Trump took office.
“The mountains of regulations promulgated by the (Obama) administration are a key reason economic growth has been dismally low. Litigation is another form of executive action that can have similar devastating impacts on American jobs and competitiveness and should be reviewed in the same manner that the Transition is reviewing regulations.”
Alarmingly, the Trump administration has not listened to this dire warning. The dubious last-minute lawsuits against Oracle and a number of other government contractors are still alive and well.
President Trump has successfully removed hundreds of needless and onerous regulations that once stifled American businesses. But his work isn’t done.
The current administration should now finish the job by purging the remains of the reckless and baseless midnight litigation plot that continues to unjustly shackle American companies innocent of its accusations.
