The problem is that diversity racial and gender hiring quotas like these appear to run afoul of the 1964 Civil Rights Act’s prohibition on employment discrimination on the basis of race or sex: “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; or … 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.”

However, thanks to the 1979 ruling by the Supreme Court ruling Steelworkers v. Weber which ruled that employment policies that racial preferences on the basis of race and sex in favor of women and minorities, which plaintiffs argued was reverse discrimination, were not a violation of the Civil Rights Act, in effect legalizing employment discrimination against whites and males. This was a sharp departure from more racially neutral interpretations of the Civil Rights Act by federal courts that preceded the decision.

Then Associate Justice William Rehnquist, who would go on to become the Court’s 16th Chief Justice in 1986, in his dissenting opinion, compared the Court’s rewriting of the Civil Rights Act to the totalitarian regime portrayed in George Orwell’s 1984, writing that law was written plainly, “Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates, this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white.”

Rehnquist blasted the majority of the court, adding, “the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as it was in our prior decisions. … Now we are told that the legislative history of Title VII shows that employers are free to discriminate on the basis of race: an employer may, in the Court’s words, ‘trammel the interests of the white employees’ in favor of black employees in order to eliminate ‘racial imbalance.’… Our earlier interpretations of Title VII, like the banners and posters decorating the square in Oceania, were all wrong.”

44 years after the Steelworkers v. Weber decision we are seeing the outcome of corporate and business hiring practices that now fully favor reverse discrimination as a means of achieving perceived equity and inclusion as a means of securing ESG investment, which grew to $8.4 trillion, according to the latest data by the USSIF, The Forum for Sustainable and Responsible Investment.

The majority of the current Supreme Court are all considered acolytes of Rehnquist. All were regarded as constitutionalists, originalists and textualists when they were nominated by conservative presidents George H.W. Bush, George W. Bush and Donald Trump, the latter of whom just secured an historic 6 to 3 majority on the nation’s highest court with Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Today, the question of reverse discrimination posed by ESG’s Diversity & Inclusion corporate policies might be decided differently by today’s Supreme Court more than 40 years later. It would be up to those fired or cancelled to make the case they were discriminated against on the basis of race and/or sex.

This is exactly the Title VII approach this author advocated for in February to more broadly address ESG’s violations in retirement investments of not just civil rights laws but also antitrust with its policies to restrict U.S. carbon-based energy production of oil and coal in favor of green technologies and to drive up prices.

Marketing campaigns aside, this is where the real ESG battle is. 

And it need not just be a legal strategy that plays out in federal courts — although that is a necessary component — it could also later be coupled with Labor Department, IRS and federal employee retiree restrictions against retirement investments into companies violating Title VII and antitrust. America First Legal is on the right track. If civil rights and antitrust laws are enforced as written, you can kill ESG for good.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

To view online: https://dailytorch.com/2023/04/america-first-legal-files-civil-rights-complaint-against-anheuser-buschs-racial-and-gender-hiring-quotas-as-violation-of-title-vii-of-the-civil-rights-act/

 

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To view online: https://www.youtube.com/watch?v=4ehUNkY_JFI

 

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