Diversity Thursday

more traction...but a warning

There is more traction moving in the right direction than you can cover in one DivThu, so let’s look at some more examples to build off last week’s good news.

Remember as you read this all the comparable examples in the civilian sector mentioned below that you see in DOD. What happens in civilian court will find its way into what will probably be the last holdout of the agents of division and sectarianism, the federal government in general and DOD in particular.

Patience and persistence are the order of the day. Yes, there will be setbacks in the march towards an equal society, but notice the success and do not be deterred.

In the legal world, discovery is a wonderful thing. One fact we do know: what is pulled into the light in discovery will not survive the light of day.

Via WSJ:

In lawsuits, shareholder letters and petitions to the Equal Employment Opportunity Commission, activists are using some of the same tactics that progressive groups have used to advance diversity, equity and inclusion, or DEI, programs. They are arguing that companies are violating rules against race- and sex-discrimination, including those drawn from legislation designed to secure the rights of Black Americans.

Comcast settled a case accusing it of illegally favoring minority-owned small-business customers with grants and marketing advice. Amazon has been sued in Texas over a program offering an extra $10,000 to Black- or Latino-owned delivery-service contractors. Starbucks directors and executives are being sued by a shareholder arguing they violated their duty to investors by supporting diversity policies. 

Dozens of corporate law firms and major employers have received letters from Republican officials warning them to adhere to laws prohibiting racial quotas and preferences in employment and contracting decisions.

Facts and the law are powerful things. They can’t do you any good if you don’t say the former and use the latter.

“Anything a company’s doing that is treating someone differently because of their race, even if it’s a small part of the decision-making process, is going to be scrutinized,” said Dan Lennington, a former Wisconsin deputy solicitor general and deputy counsel for Wisconsin Institute for Law and Liberty, the legal group behind the Comcast lawsuit.

…

Cable giant Comcast limited a small-business grant program to companies at least 51% owned and operated by someone identifying as Black, indigenous, a person of color, or female—people the company said had been disproportionately affected by the coronavirus pandemic.

The Wisconsin Institute for Law and Liberty, in suing Comcast in April 2022, cited the 1866 Civil Rights Act. One provision often referred to as Section 1981 says all Americans should have the same rights to sue and enforce contracts “as is enjoyed by white citizens.” The Wisconsin Institute, which says it supports litigation promoting “individual initiative and ordered liberty that leads to prosperity,” essentially turned that section on its head by gathering several white, male business owners as plaintiffs.

In mid-September, when Comcast announced the next round of grants, it opened the program to all small businesses. Two months later, Comcast settled the litigation.

That, my friends, is how it is done. That doesn’t settle the argument. Not even close.

A federal lawsuit against Amazon.com filed outside Dallas in July 2022 also invokes the 1866 law. It targets a program awarding an additional $10,000 to Black, Latino and Native American delivery-service contractors to defray startup costs. The lawsuit also criticizes an Amazon program aimed at helping Black-owned businesses sell products on Amazon’s website. 

The plaintiff, a Denton County, Texas, resident, wants to apply to start an Amazon delivery-service contractor, but says she won’t until the company eliminates the assistance for minority contractors or offers whites and Asians the same benefit, the complaint says. The plaintiff can’t apply to become an Amazon delivery service partner “without subjecting herself to racial discrimination,” the lawsuit says.

Amazon has big pockets and even greater political standing. This will be interesting to watch.

Those familiar with DOD recruiting and promotion “goals” we’ve discussed for years here, will recognize the issue below.

Title VII of the Civil Rights Act of 1964 bans workplace discrimination. The recent affirmative-action decision didn’t address employment practices directly. But Supreme Court Justice Neil Gorsuch in a concurring opinion noted “materially identical language” on discrimination in the laws governing higher education and employment. 

Starbucks officers and directors were sued in August 2022 by National Center for Public Policy Research, a conservative think tank that owns 56 shares in the coffee chain. It accuses Starbucks of violating Title VII and Section 1981, and the officials of breaching their fiduciary duty to shareholders by embracing policies it says violate antidiscrimination law in areas including employment, supplier contracts and executive compensation.   

Under the policies, Starbucks says it wants at least 30% of its U.S. workforce at all levels to be Black, indigenous or people of color by 2025. It plans to implement an analytics tool that lets managers see their progress and uses workforce diversity measures to help set executive pay.

This effort is having a salutary effect in encouraging others.

Coca-Cola is among the companies that has already backtracked. In early 2021, then-General Counsel Bradley Gayton addressed a letter to outside law firms saying that 30% of new legal work for the soda giant should be performed by lawyers who are women, LGBTQ+, disabled or members of racial and ethnic minority groups. Law firms had to report demographic data to Coke, which could cut their fees if the guidelines weren’t met, the letter said. Gayton stepped down from the role three months later.

American Civil Rights Project, a nonprofit law firm that also represents NCPPR in its Starbucks lawsuit, threatened to sue Coke officials on behalf of shareholders. In a letter to the company that June, the group called the policies “textbook violations” of Section 1981.

In early 2022 Gayton’s successor, Monica Howard Douglas, wrote to the American Civil Rights Project that while the company remained fully committed to advancing DEI in the legal profession, she had contacted law firms to tell them the guidelines were never company policy. 

I’ll take a partial win.

h/t GM.