State AGs Say: Stop Discriminating! [Updated]

The Supreme Court’s anti-discrimination decisions, Harvard and UNC, have revitalized the movement to achieve equal justice for all Americans. Those cases had to do with college admissions and didn’t directly touch on employment, but they show which way the wind is blowing. And the arguments against race discrimination in academia transfer easily to race discrimination in employment.

Thus, earlier today thirteen state Attorneys General sent a letter to the CEOs of America’s largest 100 companies, warning them against engaging in race discrimination and raising the threat of state enforcement. The states are Tennessee, Kansas, Alabama, Arkansas, Indiana, Nebraska, Iowa, South Carolina, Kentucky, West Virginia, Mississippi, Missouri and Montana. The letter is embedded below. Here are some excerpts:

We, the undersigned Attorneys General of 13 States, write to remind you of your obligations as an employer under federal and state law to refrain from discriminating on the basis of race, whether under the label of “diversity, equity, and inclusion” or otherwise. Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong. Companies that engage in racial discrimination should and will face serious legal consequences.
***
Last month, the United States Supreme Court handed down a significant decision in Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023) (“SFFA”). … And the Court reiterated that this commitment to racial equality extends to “other areas of life,” such as employment and contracting. Id. at 13. In sum, the Court powerfully reinforced the principle that all racial discrimination, no matter the motivation, is invidious and unlawful: “Eliminating racial discrimination means eliminating all of it.” Id. at 15 (emphasis added).

We ask that you comply with these race-neutral principles in your employment and contracting practices.

That would be a major change, obviously, and big business will fight it tooth and nail.

The letter goes on to cite a number of instances where it has been publicly reported that big companies, the recipients of the letter, have engaged in naked race discrimination. This is something of which nearly every large company in America is proud. Nevertheless, it is illegal:

Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in employment. It provides that “[i]t shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;” or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e- 2(a).

Most large companies violate this law every day. They do so because they think they are engaging in “good” race discrimination, and therefore are above the law. But the law doesn’t agree:

Well-intentioned racial discrimination is just as illegal as invidious discrimination. The “argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, and has been repeatedly rejected.” Parents Involved, 551 U.S. at 742.
***
And the Court [in Harvard and UNC] took pains to emphasize that the supposedly benign nature of racial preferences cannot save them. Despite the universities’ claims in SFFA that they were actually helping people, not hurting them, the Court rightly noted that that argument itself “rest[ed] on [a] pernicious stereotype.”

The AGs also cited authorities for the proposition that the anti-discrimination provisions of Title VI, which was at issue in the Harvard case, and Title VII, which applies to employers, are co-extensive.

And the idea that companies’ racial preferences help some but don’t hurt others is ridiculous:

And, of course, every racial preference necessarily imposes an equivalent harm on individuals outside of the preferred racial groups, solely on the basis of their skin color. “[I]t is not even theoretically possible to ‘help’ a certain racial group without causing harm to members of other racial groups. It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others.” Id. at 42

What weapons do these attorneys generals have to back up their threats? They cited a number of cases where companies have been sued for race discrimination under provisions of state law:

Race discrimination in employment and contracting, of course, also violates state law. And State courts frequently look to Title VII to interpret their own prohibitions against race discrimination in employment practices.

The AGs conclude their shot across the bow with this:

We urge you to immediately cease any unlawful race-based quotas or preferences your company has adopted for its employment and contracting practices. If you choose not to do so, know that you will be held accountable—sooner rather than later—for your decision to continue treating people differently because of the color of their skin.

Let’s hope the states that are in pro-Constitution and anti-discrimination hands follow through on this promise. Here is the AGs’ letter:

UPDATE: The Wall Street Journal Editorial Board has weighed in on the Attorney Generals’ letter:

The Court recognized that “outright racial balancing” is “patently unconstitutional” and accordingly, the AGs write, the principles “apply equally to Title VII and other laws restricting race-based discrimination in employment and contracting.”

That’s going to require adjustments in corporate America. DEI policies that now exist in nearly all major corporations have institutionalized discrimination as clearly as affirmative action in university admissions. 42 U.S.C. § 1981 bans discrimination in contracting but companies routinely sort contractors by race to meet diversity goals.

The letter cites specific examples of corporate policies that “illustrate the pervasiveness and explicit nature of these racial preferences.” In 2020, it says, executives of 27 banks, tech companies and consulting firms “set an explicit racial hiring quota.” The AGs say companies including “Airbnb, Apple, Cisco, Facebook, Google, Intel, Lyft, Microsoft, Netflix, PayPal, Snapchat, TikTok, Uber and others” have also set policies that amount to discrimination on the basis of race. Microsoft set quotas for suppliers.

I think you could show that race discrimination by big business is far more pervasive now than it was in the 1930s. The Journal editors conclude:

Justice Gorsuch wrote that to “‘discriminate’ against a person meant in 1964 what it means today: to ‘trea[t] that individual worse than others who are similarly situated.’” Time for corporate America to get right with the law and stop hiding behind the rhetoric of DEI to discriminate by race.

Amen. Emphasis added.