As if Governor Tim Walz’s Minnesota weren’t already in enough hot water, the U.S. Department of Justice has just sued the state for unlawful employment discrimination based on race and sex.
The federal government’s lawsuit challenges Minnesota law requiring all state agencies to balance the race and sex of their workforces with the relevant civilian labor market, effectively creating a statewide affirmative action regime in violation of Title VII of the Civil Rights Act of 1964.
“Minnesotans already had to see their state officials let criminals brazenly walk off with over a billion taxpayer dollars,” said U.S. Attorney Daniel N. Rosen for the District of Minnesota. “Now they see those same officials abusing their power by systematically and unlawfully branding jobseekers as the wrong race or sex.”
Under Minnesota law, “to eliminate the effects of past and present discrimination” on the basis of “protected group status,” state agencies must consider “affirmative action goals” when hiring staff and personnel. “Protected groups” are defined as “females, persons with disabilities, and members of the following minorities: Black, Hispanic, Asian or Pacific Islander, and American Indian or Alaskan native.”
However, according to the lawsuit filed Wednesday in the U.S. District Court for the District of Minnesota, the state identifies no prior or present discrimination to support its race and sex-conscious employment policies.
Minnesota agencies hire their staff and personnel under the watchful eye of the Minnesota Management and Budget, the agency overseeing the statewide affirmative action program. To ensure their compliance, agency heads must submit affirmative action “progress reports” to the MMB. If they failed to hire enough employees with the right skin color and sex chromosomes, they must explain why. They risk a report to the governor if they fall short for two years in a row.
But there is apparently room for leniency in the evaluation process. Agencies can score DEI brownie points by developing “other innovative ways to promote awareness, acceptance, and appreciation for diversity and affirmative action.” Those initiatives will be considered when evaluating the agency’s compliance with affirmative action requirements, according to the lawsuit.
The DOJ complaint alleges that Minnesota, as an employer, discriminates against state employees and prospective employees on the basis of race, color, national origin, and sex in violation of Title VII by requiring state agencies to “justify” and receive approval before hiring employees who are not female, black, Hispanic, Asian, Pacific Islander, American Indian, or Alaskan native.
“Because staffing is a zero-sum game,” the lawsuit states, “when Minnesota gives preferences to employees or prospective employees on the basis of their race, color, national origin, and sex, it inevitably and necessarily discriminates against other employees or prospective employees because of their race, color, national origin, and sex” (emphasis added).
The DOJ asks the court to block the state’s race- and sex-conscious staffing and personnel practices and declare them in violation of Title VII.
There is solid Supreme Court precedent for doing so. In its landmark Students for Fair Admissions v. Harvard decision, the Court put an end to race-based affirmative action in college admissions—and by implication elsewhere, Professor Jacobson wrote at the time. With this latest lawsuit against Minnesota, the unlawful race- and sex-based discrimination in employment done in the name of affirmative action could soon meet the same end.
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