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Corporate America is on notice: Discriminating by race is illegal

Harvard cannot employ racial preferences — and the Fortune 100 can’t either.

Affirmative action opponent Edward Blum created Students for Fair Admissions, the group that filed the lawsuits against Harvard University and the University of North Carolina at Chapel Hill. “Eliminating racial discrimination means eliminating all of it,” the court held in its June ruling.Shuran Huang/For The Washington Post

The Supreme Court’s landmark decision in June banning racial preferences in college admissions made no mention of racial discrimination by companies. It didn’t have to. The majority opinion written by Chief Justice John Roberts could not have been more emphatic or unambiguous in its rejection of any practice that involves judging Americans on the basis of race, regardless of the reason for doing so.

“Eliminating racial discrimination means eliminating all of it,” the court held. The Constitution’s “guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” The case before the high court, Students for Fair Admissions v. Harvard, dealt specifically with racial preferences — euphemistically called “affirmative action” — in higher education. But the moral and legal logic of the justices’ ruling extends to every area of American life, very much including the workplace.


Harvard and the University of North Carolina were sued for violating Title VI of the 1964 Civil Rights Act, which forbids racial discrimination by any institution that accepts federal funds — a category comprising nearly every college and university in America. Racial discrimination in employment, on the other hand, is barred by Title VII, which is even more sweeping in its terms. It applies to every company that employs 15 or more people and requires no connection to the federal government.

Under Title VII, it is against the law for any business to “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.” In case that isn’t plain enough, the law also makes it illegal to classify workers “in any way which would deprive or tend to deprive an individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”


Prior to the Civil Rights Act, racial discrimination in employment was often deployed out of contemptible racial bigotry or to prevent Black workers from taking “white” jobs. Six decades later, racial discrimination in many workplaces has been institutionalized for purposes of affirmative action or to promote so-called “diversity, equity, and inclusion” (DEI) policies. A recent letter sent to Fortune 100 CEOs by the attorneys general of 13 states itemized some contemporary examples of how corporate America discriminates on the basis of race today:

“[A] group of executives from 27 banks, tech companies, and consulting firms set an explicit racial hiring quota,” the AGs wrote. “Goldman Sachs set racial quotas for the hiring of new analysts and entry-level associates. . . . Microsoft announced that it would set a quota for the number of Black-owned suppliers over three years . . . as well as for the number of Black-owned US partners.”

Innumerable other corporations have adopted race-based approaches to hiring, promotion, and contracting. Some lay out the precise racial percentages that they want their workforce to reflect. Some announce plans to increase their hiring of Black employees by a specified quota. Some, forced to shrink their payroll, even pledge that decisions about layoffs will be made through “an Anti-Racist/Anti-Oppression lens.”

Many Americans, of course, see nothing wrong with sorting people by color for the sake of affirmative action or diversity. But racial discrimination for any reason, well-intentioned or ill-intentioned, is immoral. Under the Equal Protection Clause of the Fourteenth Amendment and under the Civil Rights Act, preferences for or against any racial group are barred. If that wasn’t clear before the Supreme Court decision in June, it certainly should be now.


“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” the court held. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”

Racial discrimination defiles everything it touches. It should be intolerable in a nation founded on the principle that all persons are created equal. At long last the plug has been pulled on the use of racial balancing, preferences, “plus” factors, and classifications in the academic world. The corporate world ought to waste no time pulling the plug on its own race-based practices. Companies that treat people differently because of the color of their skin are on notice now: In America, racial discrimination is unlawful. Harvard can’t do it, and the Fortune 100 can’t either.

Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit globe.com/arguable.