In tech, where much of the most fervent corporate advocacy started, DEI departments have been decimated. And now the EEOC, the US Equal Employment Opportunity Commission, has delivered unequivocal clarification that doing any form of preferential hiring on the basis of race (or sex or other protected classes) is (still!) flat-out illegal.
The latter came in a remarkable exchange on X between Mark Cuban, who’d taken to defend letting DEI considerations be “part of the [hiring] equation”, and Andrea R. Lucas, a sitting EEOC Commissioner:
Title VII refers to a part of the Civil Rights Act of 1964. EEOC has the statute in full on their website. It doesn’t really beat around the bush:
It shall be an unlawful employment practice for an employer 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.
And directly addresses Cuban’s admission of using race and sex as “part of the equation”:
...an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
Which is all really very sensible! You can’t hire people on the basis of race, not even if that consideration is only “part of the equation”. That’s exactly as it should be.
But it’s also in direct opposition to the DEI mantra of yesterday. That companies needed to explicitly consider race in their hiring practice in order to correct for “historical inequities”. That is, as anti-racism proudly claims, to address past discrimination, we have to discriminate today. In order to ensure that demographic distributions at the national level are mirrored within every corporate environment. The infamous quote from Kendi goes:
The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.
These aspirations are not compatible. You can’t both follow the law, and not consider race in your hiring decisions, while somehow actively correcting for real or perceived disparities in the racial makeup of a company during that same process.
What you’re allowed to do, of course, is things like the Rooney Rule. Where you seek to broaden the pool of applicants through targeted outreach. But when it comes down to hiring candidate A or B, it’s illegal to let race enter the equation.
None of this is new, of course. The Civil Rights Act is from 1964. It was passed to address the explicit and discriminatory use of race in hiring practices. Not to apply discrimination in the opposite direction to get desirable statistical outcomes.
But during 2020-2022, this colorblind principle was sacrificed on the new altar of “antiracist discrimination”. The results were startling. In 2021, the S&P 100 – the cream of Corporate America – added 300,000 jobs. 94% of these positions went to people of color, 6% to white applicants. This was antiracism in action. And, according to the Civil Rights Act of 1964, plainly illegal.
I think we’ll see a flood of lawsuits trying to capitalize on this documented pattern of illegal hiring practices soon. The Supreme Court has set the tone in the case of academia, and the EEOC has been clear that “discrimination on the basis of race is illegal”, which of course makes “antiracist discrimination” illegal too. So the legal path has clearly been paved. Especially when employers, like Mark Cuban, go on the record with their illegal “part of the equation” hiring practices.
With corporate DEI bureaucracies getting dismantled, I think it’ll be corporate legal departments who drive the agenda for hiring practices going forward. And rule number #1 has gotta be: Don't discriminate on the basis of race. Don’t break the law.
