A letter from 13 state attorneys general to Fortune 100 companies warns them not to use “racial quotas and race-based preferences in employment and contracting.” The letter comes in the wake of—and invokes—the Supreme Court’s landmark decision in Students for Fair Admissions v. Harvard, which held Harvard University’s affirmative action policy violated Title VI of the Civil Rights Act of 1964.
The Tennessee and Kansas attorneys general are co-leading the effort challenging race-based employment practices, according to a press release, with support from the attorneys general of Alabama, Arkansas, Indiana, Iowa, Kentucky, Mississippi, Nebraska, South Carolina, and West Virginia.
The letter informed the companies that “the Supreme Court’s recent decision should place every employer and contractor on notice” of the illegality of these practices, even by private companies:
[T]he Supreme Court struck down Harvard’s and the University of North Carolina’s race-based admissions policies and reaffirmed “the absolute equality of all citizens of the United States politically and civilly before their own laws.” Notably, the Court also recognized that federal civil-rights statutes prohibiting private entities from engaging in race discrimination apply at least as broadly as the prohibition against race discrimination found in the Equal Protection Clause. (citations omitted)
The letter highlights “commonplace” racial discrimination at the companies, singling out well-known companies like “Airbnb, Apple, Cisco, Facebook, Google, Intel, Lyft, Microsoft, Netflix, Paypal, Snapchat, TikTok, [and] Uber” who allegedly use “[r]acial quotas and other explicitly race-based practices in recruitment, hiring, promotion, and/or contracting.”
In support of its claims, the letter cites a 2021 CNBC article discussing tech companies’ anti-racism commitments. In 2020, Google committed itself to “[i]mproving representation of underrepresented groups in leadership by 30% by 2025” and to “[m]ore than doubling the number of Black workers at non-senior levels by 2025.”
In 2021, according to CNBC, a Google spokesperson reported 2020 was the company’s best year “for hiring Black workers,” who “represented 8.77% of U.S. hiring in 2020 compared with 5.5% in 2019.”
In 2020, Facebook pledged to “[d]iversify staff with 30% more people of color including 30% more Black people in leadership roles over five years. The next year, Facebook reported it “achieved a 38.2% increase in Black leaders, getting a head start on a five-year goal to increase leaders who are people of color by 30%.”
“Such race-based employment and contracting violates both state and federal law,” according to the letter. “Racial discrimination is both immoral and illegal” under state and federal law, according to the letter, which warns companies that the state attorneys general, “as the chief law enforcement officers” of their states, “intend to enforce the law vigorously.”
As support, the letter cites Title VII of the Civil Rights Act of 1964, which “prohibits racial discrimination in employment.” The letter implies the Court’s decision regarding education and affirmative action, which implicates Title VI, applies in the realm of employment and affirmative action, which implicates Title VII.
The claim that the Court’s affirmative action decision applies to employment is not without controversy. NYU Law’s Kenji Yoshino and David Glasgow commented on the scope of the decision:
While the Court held that affirmative action violates . . . Title VI of the Civil Rights Act of 1964, it did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. To end workplace affirmative action, the Court would need to overrule two of its longstanding precedents—United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987)—which authorized affirmative action under Title VII.
A representative of the Tennessee attorney general’s office responded to Legal Insurrection‘s request for comment. The representative declined to comment on whether the Court’s affirmative action decision is binding in the realm of employment because the question “is requesting legal advice, which we cannot provide.”
A press release from the Kentucky attorney general’s office offered a more moderated interpretation of the Court’s decision and its impact in the realm of employment:
In light of a recent Supreme Court ruling striking down race-based admissions in universities, a coalition of 13 attorneys general sent a letter to the CEOs of the Fortune 100 expressing concern that some of their companies’ hiring practices may be similarly discriminatory and illegal. (emphasis added)
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