Normally, my colleagues and I are happy to include a new multi-million-dollar penalty paid by a Fortune 100 company to the Justice Department in our Violation Tracker updates. This month, however, we are reluctantly creating an entry for a $17 million settlement reached with IBM.
Our hesitation stems from the fact that the case is less a legitimate enforcement action than a salvo in the Trump Administration’s ongoing crusade against Diversity, Equity, and Inclusion. DOJ is making an example of IBM to intimidate Corporate America into eliminating whatever vestiges remain of conventional policies designed to address systemic racism and sexism in the workplace.
Turning decades of public policy on its head, this administration has decided that those efforts to rectify discrimination are themselves discriminatory and should be the main focus of DOJ’s civil rights enforcement.
What makes the IBM case especially pernicious is that DOJ brought it under the guise of a False Claims Act action. The FCA is normally used against contractors found to have been cheating the federal government. It is most commonly applied against healthcare providers and suppliers to the Pentagon.
IBM was accused of violating its responsibilities as a federal contractor by taking race, color, national origin, or sex into account when making employment decisions, including by using a diversity modifier that tied bonus compensation for managers to achieving demographic targets.
In a press release announcing the settlement, Associate Attorney General Stanley Woodward proclaimed: “Merit drives promotion and opportunity. Not someone’s sex or race.” He continued: “Today’s settlement proves this Department’s commitment to ensure companies are not using taxpayer funded work to further woke unconstitutional practices in American workplaces.”
Woodward managed both to ignore the long history of exclusion and bias in U.S. corporations and to give the misleading impression that the Trump Administration’s anti-DEI efforts regarding contractors are based on a solid legal foundation. That foundation actually consists of a controversial executive order Trump issued in March and highly questionable interpretations of existing civil rights laws.
The IBM case is also troubling because the company’s supposedly illegal practices were put in place well before the Trump Administration announced its new policies. Although IBM did not admit liability, it cooperated with the DOJ in the investigation and voluntarily terminated or modified the practices in question. Like various law firms and universities targeted by Trump, IBM decided to pay off the administration to be done with the matter.
DOJ’s decision to pervert the False Claims Act to pursue bogus discrimination cases is problematic not only for companies such as IBM that will have to respond to the allegations. It also raises a question about what genuine contract fraud and bias situations are not being investigated.
At a time when the DOJ has been hollowed out by the departure of many career prosecutors, the department can ill afford to devote resources to spurious cases. The fact that it is doing so is good news only for those companies eager to adhere to the lowest ethical standards.
You must be logged in to post a comment.