July 3, 2023

What’s the Future for Affirmative Action in the Workplace?

If race-based discrimination is unconstitutional for college admissions, how can we continue to allow it in the workplace?

Now that race-based discrimination has been rightly ruled unconstitutional in college admissions, what are the odds that such discrimination will continue to be allowed in the American workplace?

Put another way: Is it time to red-line racial discrimination right out of the office?

It’s a great question, and it’s now top-of-mind among corporate lawyers — the folks whose job it is to keep their companies from getting sued for mega-millions. All of a sudden, “diversity” might not be a good enough defense for looking at certain people’s skin color and deeming them less desirable in the workplace.

As Fox Business reports: “Federal law prohibits the consideration of race and other protected characteristics like age, religion, sex — including sexual orientation, gender identity, or pregnancy — national origin, disability or genetic information in corporate hiring decisions.”

And yet, as Fox Business mealy-mouths it: “Many corporations have sought to diversify their workforce by trying to recruit qualified candidates from more diverse pools of applicants or through training programs that offer opportunities to members of groups that a company believes are underrepresented in their management teams. Such initiatives are often part of a company’s broader diversity, equity and inclusion (DEI) program.”

Here’s a tip: Think of “diversity” and “DEI” as euphemisms for “discrimination.” Because that’s what they are.

One can imagine both the rage and the despair currently being felt among the activists in the New York Times’s newsroom. Not only is their president an international embarrassment and a source of near-constant ridicule, but the policies they’ve championed and used to divide Americans for more than a half-century are now, finally, being rejected as unconstitutional and repudiated by the American people.

And now, in the wake of last week’s landmark Supreme Court decision striking down raced-based discrimination in college admissions, the writing may be on the wall for the corporate diversicrats, those racial bean-counters who’ve made it their mission to ensure proper numerical representation of the races everywhere except in the NFL and the NBA and the hip-hop industry.

“The effects on business could be profound,” the Times reports. “Corporate America has embraced diversity, equity and inclusion policies, particularly in the wake of protests over George Floyd’s killing in 2020. But Thursday’s ruling opens the door for employees — and conservative activists — to bring legal challenges to those policies.” (Is it just us, or does anyone else find it weird that the Times is conflating the death of George Floyd with race-based discrimination in the workplace?)

Desperate to find a racially discriminatory silver lining in the dark cloud of color-blindness, the Times trots out the experts: “Corporate diversity efforts aren’t exactly analogous to university ones, some experts say. The equal protection clause doesn’t apply to private employers, Doug Brayley, a labor law specialist at Ropes & Gray, told DealBook.”

It’s an interesting argument to make — and it betrays the weakness of the diversitymongers’ hand — when they’re reduced to arguing that the Constitution doesn’t prohibit racial discrimination in the private sector.

DEI, though, is big business — really big business. As columnist Charles Gasparino writes, “It’s the acronym for the nearly $10 billion Diversity, Equity and Inclusion industry.”

As to the argument that the Supreme Court didn’t rule on DEI when it struck down racial preferences in college admissions, Gasparino begs to differ: “Sorry,” he says, “my sources who advise corporations on governance issues say the Supremes actually did rule on DEI since corporate DEI is based on some of the same noxious and now unconstitutional premises that colleges have used to justify race-based admissions.”

Let’s see if corporate America agrees. And if not, let the lawsuits begin.

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