Yet for decades, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has operated a comprehensive enforcement regime, without any basis in the law.

It started in 1965, when President Lyndon Johnson ordered that all government contracts include a set of anti-discrimination provisions—collectively, an equal-opportunity clause. Since then, the OFCCP leveraged this tenuous foundation into a full-blown regulatory scheme, complete with the power to award monetary damages.

In recent years, OFCCP has wielded its power in increasingly aggressive ways. For example, the agency’s onerous and burdensome demands for information often exceed the value of the underlying government contract. Given the absence of statutory constraints—OFCCP is making this up as it goes along—the agency’s evident overreach is perhaps unsurprising.

In a February post here I noted that even when the agency makes up the rules as it goes along “few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions,” but that this pattern was beginning to change, with first Google and more recently Oracle pushing back. Now Oracle is challenging the government in court and the Cato Institute has joined an amicus brief on its behalf, arguing that “(1) OFCCP’s scheme is far beyond any statutory authority, and (2) striking it down wouldn’t undermine enforcement of anti??discrimination laws.” [Shapiro and Yeatman on brief in Oracle v. U.S. Department of Labor]

Oracle fights the federal contract cops in court is a post from Overlawyered - Chronicling the high cost of our legal system

Religious accommodation and LGBTQ rights is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

As OFCCP has turned into a combination social engineer and extractor of big-ticket settlements, few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions. But recently two big tech firms have stepped forward as exceptions: Google, in a dispute we wrote about in 2017 on demands for employee documents, and now Oracle, which is suing rather than accept what it considers an unreasonable settlement demand. [Veronique de Rugy, syndicated/Casper Star Tribune; WSJ editorial; Kate Cox, ArsTechnica; Anthony Kaylin, ASE; Pamela Wolf, CCH]

Another company, Oracle, stands up to the federal contract cops is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Amused by this lengthy disclaimer in front of a bowl of mints at an NAB booth. "It's needed for compliance" they said. @overlawyered pic.twitter.com/KSdOHUb21Q

— (((Thrill Science))) (@ThrillScience) April 25, 2017

A followup photo includes the fateful mint jar. In subsequent discussion, attorney Peter Orlowicz points out that general federal ethics regulations “exclude modest items of food/refreshments from the definition of ‘gift’; it’s not clear that IBM was being over-cautious, though, given that supplementary agency regulations as well as state and local regulations have been known to go further than the general federal standard.

Please advise IBM of any mint issues is a post from Overlawyered - Chronicling the high cost of our legal system

September 9 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system