Employment / 1 min read
Mark Cuban set off a firestorm when he posted about his methods when looking for people who put his business in the best position to succeed. He stated that, while he never hires someone based exclusively on protected characteristics such as race, gender, or religion, they “can be part of the equation.” U.S. Equal Employment Opportunity Commissioner Andrea Lucas publicly responded that the billionaire entrepreneur was “dead wrong” to consider race and gender in any way when hiring. She added that “it’s important employers understand the ground rules here… As a general rule, race/sex can't even be a 'motivating factor' — nor a plus factor, tiebreaker, or tipping point.”
Title VII prohibits race, sex, and national origin discrimination. The Commissioner explained that employers are in violation of this “if race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice,” and emphasized that “there is no 'diversity interests' exception to this rule.” This Twitter war highlighted the difficulties employers face navigating diversity, equity, and inclusion (DEI) initiatives.
Other EEOC commissioners, however, have pushed employers not to abandon their DEI initiatives. Just hours after the Supreme Court struck down most affirmative action initiatives relating to institutes of higher learning in June 2023, an EEOC commissioner stated that she believed employer DEI initiatives have a lawful place.
These contradictory views of DEI hiring create a firestorm of their own. Employers must proceed with caution when making hiring decisions in these circumstances. If you are an employer feeling overwhelmed in this arena, Andrews Myers employment section can help navigate this uncertain legal landscape.