Tuesday, February 6, 2024

A DEI smackdown

It's a DEI heavyweight battle of epic proportions that played out of X over the past week.

In the blue corner, hailing from Big D, the owner of the Dallas Mavericks and serial entrepreneur Mark Cuban: 

I've never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.

And in the red corner, hailing from our nation's capital, EEOC Commissioner Andrea Lucas: 

Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can't even be a "motivating factor" — nor a plus factor, tie-breaker, or tipping point.… This isn't an opinion; reasonable minds can't disagree on this point. It's the plain text of Title VII.

I'm as pro-DEI as anybody, but in this battle Commissioner Lucas is the clear winner by an early and devastating knockout. No matter how good intentioned an employer might be, if you take race or gender into account in hiring or retaining employees, you've violated Title VII.

DEI isn’t about preferences. It isn't about hiring a "Black employee" or a "female employee." It's about increasing representation in the applicant pool such that marginalized candidates have a better chance at being the most qualified applicant. It's about making sure they have the tools they need to succeed on the same footing as anyone else once they get into your workplace. And it's about making sure they feel included and comfortable in the workplace despite their inherent differences.

Diversity definitely offers a legitimate competitive advantage to businesses that execute it legally. But the key is legally. You can't create an advantage in the hiring process through preferences, quotas, or tie breakers. Period. The law just doesn't allow it.