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The right’s answer to the ACLU

By Ryan Mills, National Review

Wisconsin Spotlight | Sept. 14, 2022

In the wake of the 2020 protests and riots over George Floyd’s killing, leaders at DICK’s Sporting Goods engaged in a series of “conversations around race” that led to two new diversity goals.

Within five years, DICK’s vowed, it would increase minority representation in leadership roles by 30 percent, and increase the overall representation of women in store leadership to 40 percent, according to the company’s 2020 Purpose Playbook.

As part of its “Commitment to Diversity,” Amazon recently launched a program offering $10,000 grants to “Black, Latinx, and Native American entrepreneurs” looking to build delivery businesses that would partner with the company. More recently, DICK’s and Lyft have announced that they will pay pregnant employees to travel to obtain abortions.

The problem with these initiatives, according to leaders of a new conservative legal nonprofit, is that they are likely all illegal. Over the summer, lawyers with the America First Legal Foundation started filing complaints and legal challenges against these companies and other large corporations accusing them of engaging in illegal and discriminatory employment practices.

In July, lawyers with America First Legal — an organization created by and primarily staffed with veterans of the Trump administration — filed a class-action lawsuit against Amazon for what they deem to be “illegal racial discrimination” and “egregious violations of civil rights.” They’ve also filed complaints against DICK’s, Lyft, Yum! Brands (KFC, Pizza Hut, Taco Bell), and Kontoor Brands (Lee and Wrangler jeans) with the U.S. Equal Employment Opportunity Commission accusing those companies of engaging in discriminatory practices.

Leaders of America First Legal told National Review that they believe these companies and others are clearly violating the law in the name of diversity, equity, and inclusion. AFL’s goal, they said, is to find more victims of discrimination, to file more lawsuits challenging the practices in court, and to inevitably send it all crashing down like the house of cards that it is.

“We’ve come to a place in society where things that were once recognized as undeniably being discrimination, in violation of law, have now become accepted among many of the elite power centers and institutions across the United States,” said Gene Hamilton, AFL’s general counsel, and the lawyer who oversaw the Trump administration’s efforts to end DACA.

“What we are trying to do is fight for equality under the law,” he added. “Our view is this equity agenda that has been advanced by the administration, by private companies, by all kinds of different organizations is as toxic to the American ideal as you can possibly imagine.”

None of the companies that AFL has targeted with legal challenges and complaints responded to emails or phone calls from National Review seeking comment last week.

AFL’s legal challenges generally are based on alleged violations of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. The complaints and challenges also accuse some companies of violating Section 1981 of the Civil Rights Act of 1866, which involves discrimination and the enforcement of contracts, as well as the Pregnancy Discrimination Act of 1978.

National Review reached out to several civil-rights and employment lawyers who are not involved with the AFL legal challenges to discuss the efforts. They said that courts don’t typically take issue with general goals and timetables regarding diversity and inclusion, and in fact companies often need to show they have diversity goals and timetables to get federal contracts — a step some of the lawyers took issue with. But the lawyers generally agreed that diversity goals and timetables can become problematic as they become more specific, as metrics are attached, and if hiring managers and executives are offered incentives to advantage some groups over others.

To some extent it’s unclear exactly where the line is between a legal diversity initiative and an illegal and discriminatory employment practice because the U.S. Supreme Court hasn’t weighed in much on the topic in recent decades, said Curt Levey, president of the Committee for Justice.

Levey said the area of law AFL is targeting — diversity programs and employment — has largely been untouched for decades and is “very, very ripe” for legal challenges. He suspects today’s more originalist Supreme Court would rein in some of the employment practices that many major companies use in the name of diversity, equity, and inclusion. “I think a lot of what goes on today and what corporations brag about is legally dubious at best,” Levey said.

Most of AFL’s challenges involve allegations that the companies’ diversity goals are illegal, and are the equivalent of prohibited policies that “seek to impose racial balancing.” Yum! Brands, for example, has stated that one of its goals is increasing black and “Latinx” representation among its “executive and management ranks, franchisees and suppliers over the next 10 years to match the combined demographics of those groups within the U.S.”

Stephen Miller, founder and president of AFL, said that while the particulars are always important, the diversity and inclusion programs that many companies like Yum! have adopted are essentially backdoor quota systems driven by left-wing ideologues.

“The moment that you assert, externally or internally, that your objective is to have a preset racial outcome in your company, or a preset outcome with respect to biological or imagined sex, then you are engaging in invidious discrimination that is unlawful,” said Miller, who was a top aide to former president Donald Trump.

Sharona Hoffman, a former EEOC attorney who teaches employment law at Case Western Reserve University, reviewed some of AFL’s legal challenges, and said she didn’t believe they would be successful. There’s nothing necessarily wrong, she said, with a company putting out diversity goals. The problem comes when a company actually engages in discrimination.

You cannot discriminate,” she said. “So, if you have a white candidate and a black candidate, and they are equally qualified, you cannot base the hiring decision on the person’s race. You cannot say, ‘Oh, we will take the black person because they’re black, and we’ll reject the white person just because they’re white.’ That you cannot do.”

Some legal experts suggested AFL would be on more solid legal ground focusing its challenges on companies like Kontoor Brands that have more specific diversity goals and that offer incentives for meeting those goals. Kontoor’s goals include increasing “U.S. BIPOC [Black, Indigenous, Peoples of Color] representation from 38% to 50% by 2030,” and increasing “U.S. Black representation from 11% to 16% by 2030.” The company also has built in financial incentives and penalties aligned with those goals.

“In other words, management is paying bounties to encourage violations of federal civil rights laws,” AFL’s letter to the EEOC reads.

“When you get that specific with numbers it sure just sounds like a quota,” Levey said of Kontoors goals, adding that “common sense tells you if you have a financial incentive to hire a black person over a white person, it’s pretty hard to argue that’s treating the white applicant and black applicant the same.”

Hoffman said companies that want to legally increase the diversity of their workforces can advertise jobs in circles that will reach minority candidates, recruit heavily in those areas, and offer minority job candidates a welcoming environment. Other lawyers who spoke with National Review were more cautious. Expanding efforts to reach more minority job candidates is fine, as long as those recruitment efforts aren’t limited to specific groups, they said.

Hamilton with AFL suggested that a better — clearly legal — way that companies can assist people who have historically been subjected to discrimination would be to look at socioeconomic status. Focusing on race and sex, he said, will inevitably wrap in many people — new immigrants, for example — who haven’t experienced lingering discrimination.

Hamilton said he believes the EEOC will give the AFL complaints a fair hearing, though it’s not clear AFL will ever know, because the EEOC typically doesn’t announce its investigations.

“This is not a situation where people are speaking in code, or they’re saying with a wink and a nod, ‘We encourage applicants of this background to apply,’” he said. “Their intent is to only hire somebody of a certain background and not somebody of another background. This is now all out in the open. And because it is so blatant and out in the open, it should be something that any reasonable official at the EEOC should be able to come down hard on, quickly.”

While most of AFL’s legal actions involve complaints about employment practices, the organization targeted Amazon with a lawsuit over a diversity program designed to benefit not employees, but select entrepreneurs looking to build delivery businesses to partner with the company. A diversity program advertised on Amazon’s website, offers $10,000 grants to “qualified” candidates — “Black, Latinx, and Native American entrepreneurs.” As it is advertised, Asian Americans and white entrepreneurs are not eligible. AFL called the program a “flagrant violation of the Civil Rights Act of 1866, which guarantees to citizens of every race and color the same right to make and enter into contracts with others.”

The company also operates a “Black Business Accelerator” program that gives money and racial preferences to black-owned business that sell products through Amazon.

Hoffman said it’s not clear to her that the Amazon program violates the 1866 act. She said the company isn’t interfering with anyone’s right to make and enforce contracts — “they are just providing financial support for some people,” she said. It’s also not clear by the language of the 1866 act that it applies to reverse discrimination claims, she said.

AFL is also challenging new offers by DICK’s and Lyft to pay travel expenses for pregnant employees who want an abortion. After the Supreme Court overturned Roe v. Wade in June, DICK’s CEO Lauren Hobart announced the company would provide up to $4,000 in travel expense reimbursement for employees, spouses, and dependents — “along with one support person” — to travel to the nearest location where abortion is available.

The AFL lawyers argue that amounts to a special employment benefit that is not offered to pregnant employees who don’t choose to abort their babies. Miller suggested companies could offer trips for all pregnant employees — women who don’t want an abortion could take a short trip to relax before giving birth — but offering it only to women to get an abortion is discrimination.

Hoffman, again, was skeptical. “They’re basically offering a travel voucher for people who need medical care and can’t get medical care in their state,” she said, adding that the discrimination seems to be based on the state an employee lives in, “and that’s not a protected class.”

Levey, on the other hand, called AFL’s abortion allegations “an argument worth making.” But, he added, “I think you’d probably need a sympathetic court.”

Since it was founded in April 2021, AFL’s lawyers have been on the front lines of many of the nation’s most prominent legal battles, including fighting race-based programs that some states used to allocate Covid-19 medications, and challenging a race-based loan relief program included in the American Rescue Plan that was not open to white farmers.

Miller said AFL was built to stand up to the Left’s “astonishing litigation war machine,” which includes groups like the American Civil Liberties Union that have massive budgets. It also includes smaller activist groups, prestigious white-shoe law firms that often work on discounted rates or for free, and prominent law schools that often do free legal aid and clinic work for left-wing causes. Miller, an immigration hawk, pointed at the free legal representation that is routinely offered to illegal immigrants as an example.

“You think about your small business owners getting crushed by the IRS, your farmers and ranchers getting crushed by the USDA. You think about your everyday family that is being unfairly discriminated against in access to government benefits, grants,” he said. “These suffering and struggling Americans in their wildest imagination could never have access to the services that are routinely provided by our nation’s top lawyers to people that are not American citizens, they’re not legal immigrants, they have no right to be here whatsoever.”

Hamilton said he mostly ignores critics who question the organization’s motives, calling their race-based arguments “preposterous.” All Americans, regardless of their race or gender, should be treated the same under the law, he said.

“We are fighting for true equality for all American citizens,” Hamilton said. “Our view is very much fighting for a truly colorblind society where American citizens of all colors and backgrounds can unite under the American flag, behind the values that made this country great, that informed the most successful country that has ever existed on the face of the earth, and that we are able to move into the future together without racial strife, racial angst.”

Read more at National Review.

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