Department Of Labor And Related Agencies

MISSION STATEMENT

OVERVIEW

The labor agencies covered in this chapter include the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the Federal Mediation and Conciliation Service (FMCS), and the Pension Benefit Guaranty Corporation (PBGC). Congress has provided these agencies with the authority to enforce a wide range of federal statutes regulating workplace conduct, workforce development, employee benefits, labor organization and bargaining, and international labor conditions.

At the heart of The Conservative Promise is the resolve to reclaim the role of each American worker as the protagonist in his or her own life and to restore the family as the centerpiece of American life. The role that labor policy plays in that promise is twofold: Give workers the support they need for rewarding, well-paying, and self-driven careers, and restore the family-supporting job as the centerpiece of the American economy. The Judeo-Christian tradition, stretching back to Genesis, has always recognized fruitful work as integral to human dignity, as service to God, neighbor, and family. And Americans have long been known for their work ethic.

While it is primarily the culture’s responsibility to affirm the dignity of work, our federal labor and employment agencies have an important role to play by protect- ing workers, setting boundaries for the healthy functioning of labor markets, and ultimately encouraging wages and conditions for jobs that can support a family. In the sweep of American history, these authorities are relatively new. They largely come from Congress’s attempts in the middle of the 20th century to resolve major political questions brought about by labor conflict, the civil rights movement, and the emergence of the modern workplace. The 21st century has brought about new challenges, ranging from collapsing manufacturing sector employment and a decrease in family-supporting jobs, to the massive expansion of an increasingly radical human-resources bureaucracy. In many cases, these challenges are as significant as the 20th century labor crises and workplace changes that the agencies were developed to manage.

But the agencies have failed to respond to these challenges. Despite significant progress by the Trump Administration, a massive administrative state now hangs over productive industry and labor organization, acting as a damper on social and economic life. And under the Biden Administration, that administrative state has imposed the most assertive left-wing social-engineering agenda in the agencies’ history and ratcheted up regulatory costs on small businesses and other productive industry. The agencies’ authorities have been abused by the Left to favor human resources bureaucracies, climate-change activists, and union bosses—all against the interest of American workers.

NEEDED REFORMS

Reverse the DEI Revolution in Labor Policy. Under the Obama and Biden Administrations, labor policy was yet another target of the Diversity, Equity, and Inclusion (DEI) revolution. Under this managerialist left-wing race and gender ideol- ogy, every aspect of labor policy became a vehicle with which to advance race, sex, and other classifications and discriminate against conservative and religious viewpoints on these subjects and others, including pro-life views. The next Administration should eliminate every one of these wrongful and burdensome ideological projects. Eliminate Racial Classifications and Critical Race Theory Trainings. The Biden Administration has pushed “racial equity” in every area of our national life, including in employment, and has condoned the use of racial classifications and racial preferences under the guise of DEI and critical race theory, which categorizes individuals as oppressors and victims based on race. Nondiscrimination and equal- ity are the law; DEI is not. Title VII flatly prohibits discrimination in employment on the basis of race, color, and national origin. The President should:

Issue an executive order banning, and Congress should pass a law prohibiting the federal government from using taxpayer dollars to fund, all critical race theory training (CRT). Direct DOJ and EEOC to enforce Title VII. The President should direct the Department of Justice and Equal Employment Opportunity Commission to enforce Title VII to prohibit racial classifications and quotas, including human-resources classifications and DEI trainings that promote critical race theory.

Eliminate EEO-1 data collection. The Equal Employment Opportunity Commission collects EEO-1 data on employment statistics based on race/ ethnicity, which data can then be used to support a charge of discrimination under a disparate impact theory. This could lead to racial quotas to remedy alleged race discrimination. (The Office of Federal Contract Compliance Programs (OFCCP) also has a right to the data EEOC collects.) Crudely categorizing employees by race or ethnicity fails to recognize the diversity of the American workforce and forces individuals into categories that do not fully reflect their racial and ethnic heritage.

Amend Title VII. The next Administration should work with Congress to amend Title VII to prohibit the Equal Employment Opportunity Commission from collecting EEO-1 data and any other racial classifications in employment for both private and public workplaces. Congress should:

Eliminate disparate impact as a valid theory of discrimination for race and other bases under Title VII and other laws. Disparities do not (and should not legally) imply discrimination per se.

The President should:

Sign an executive order explicitly forbidding OFCCP from using disparate impact in its analysis.

Eliminate OFCCP. The Office of Federal Contract Compliance Programs (OFCCP) exists to enforce Executive Order (EO) 11246.2 That order was originally signed in 1965 to require federal contractors (and subcontractors) to commit to nondiscrimination. It gave enforcement authority to the Department of Labor, up to and including debarment from federal contracting. The Equal Employment Opportunity Commission has since

Eliminate disparate impact liability. With interracial marriages in America increasing, many Americans do not fit neatly into crude racial categories.1 Under disparate impact theory, moreover, discriminatory motive or intent is irrelevant; the outcome is what matters. But all workplaces have disparities.

grown, often making OFCCP’s authority redundant and imposing a second regulatory agency under whose rules businesses must operate. In addition, under EO 11246, the President and DOL can force a huge swath of American employers to comply with rules and regulations based on novel anti- discrimination theories (such as sexual orientation and gender identity theories) that Congress had never imposed by statute.

Rescind EO 11246. The President should eliminate OFCCP by simply rescinding EO 11246. Federal contractors would still be bound by statutory nondiscrimination law but would no longer work under overlapping regimes. (Contractors’ residual obligations under Section 503 of the Rehabilitation Act and Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) could be enforced by EEOC or DOL.) Contractors also would be less subject to the changing political whims of a President that might impose significant new costs or burdens on the contractors. Sex Discrimination. The Biden Administration, LGBT advocates, and some federal courts have attempted to expand the scope and definition of sex discrimi- nation, based in part on the Supreme Court’s decision in Bostock v. Clayton County. Bostock held that “an employer who fires someone simply for being homosexual or transgender” violates Title VII’s prohibition against sex discrimination. The Court explicitly limited its holding to the hiring/firing context in Title VII and did not purport to address other Title VII issues, such as bathrooms, locker rooms, and dress codes, or other laws prohibiting sex discrimination. Notably, the Court focused on the status of the employees and used the term “transgender status” rather than the broader and amorphous term “gender identity.”

Restrict the application of Bostock. The new Administration should restrict Bostock’s application of sex discrimination protections to sexual orientation and transgender status in the context of hiring and firing. Withdraw unlawful “notices” and “guidances.” The President should direct agencies to withdraw unlawful “notices” and “guidances” purporting to apply Bostock’s reasoning broadly outside hiring and firing.

Rescind regulations prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, and sex characteristics. The President should direct agencies to rescind regulations interpreting sex discrimination provisions as prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, sex characteristics, etc.

Direct agencies to refocus enforcement of sex discrimination laws. The President should direct agencies to focus their enforcement of sex discrimination laws on the biological binary meaning of “sex.”

PRO-LIFE MEASURES

Pass a law requiring equal (or greater) benefits for pro-life support for mothers and clarifying abortion exclusions. Congress should pass a law requiring that to the extent an employer provides employee benefits for abortion, it must provide equal or greater benefits for pregnancy, childbirth, maternity, and adoption. That law should also clarify that no employer is required to provide any accommodations or benefits for abortion. Keep anti-life “benefits” out of benefit plans. Some benefits attorneys and pro-choice advocates have argued since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision6 that the longstanding doctrine of Employee Retirement Income Security Act of 1974 (ERISA)7 preemption should block individual states’ efforts to prohibit employers from helping employees procure abortions via offering various kinds of coverage under employee-sponsored benefit plans. ERISA should not be allowed to trump states’ ability to protect innocent human life in the womb. Congress and DOL should clarify that ERISA does not preempt states’ power to restrict abortion, surrogacy, or other anti-life “benefits.”