DANIEL VAUGHAN: Corporate DEI Racism Faces Supreme Court Challenges

 August 9, 2023

One of the joys of leading large litigation matters as an attorney is end-of-the-month billing. If you can't detect the sarcasm there, I assure you, it's there. People joke about various professions not dealing well with math, but the worst kind of math is figuring out the number of hours billed by other people — and then talking to them about it.

If you've never had to call a person up towards the end of the month and figure out why their internal billing numbers don't match the month, consider yourself lucky. Here's how you make that conversation worse: be forced by a court to fill out a survey on the gender and sexuality of your employees.

Coca-Cola's Racial Quota Billing Practices.

I got reminded of that unpleasant moment while reading a story in the Wall Street Journal entitled, "The Legal Assault on Corporate Diversity Efforts Has Begun." In the aftermath of the Supreme Court striking down affirmative action laws as applied to universities, many corporations are examining their own policies to see if they'd pass constitutional muster.

One of those companies was Coca-Cola. The Wall Street Journal said the drink company was revisiting its policies. What were the policies? The Journal reported:

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.

That request sounded familiar because I'd received a similar request on a large plaintiffs' litigation. The demand there came from a court, not a company. It was an implied threat: report the race, sexuality, gender, and disability status of your employees or face the possibility of losing attorney fees.

Forcing Everyone to Bend the Knee.

For a moment, ignore the issues of basing payouts of a lawsuit based on personal characteristics and not work product. Instead, focus on the absolute invasion of privacy that kind of request demands.

You're demanding that a person's livelihood depends on reporting personal characteristics to fit the quote demands of a bean-counting busybody. They demand racial, equity, sexuality, or disability equity and require that everyone out themselves with those characteristics. If you don't, you don't get to count towards the quotes and hurt your business.

There were also no verification methods for these methods. It was just as easy to pencil in bubbles on the survey sheet and fire it off to the court. I'd threatened that in my situation, saying that the optimal decision was refusing to answer the questions and telling the court to pound sand.

Ultimately, I was forced to put it to the employees and emphasize that it was optional. But the recent turn in Supreme Court percent has tilted the field in the opposite direction. Now those who demanded the surveys and "DEI quota" purity are the ones questioning the legality of their measures.

Racial Determinism Returns from the Dead.

If these kinds of policies seem vaguely familiar, they should. For most of the 20th century, the eugenics-obsessed progressive movement tormented people trying to determine the genetic, racial, gender, and disability status of everyone. Cases like Buck v. Bell were used to sterilize the "unwanted."

Now, the same reasoning has been inverted to decide who gets to bill the most in legal cases. If you don't meet the preferred racial, gender, sexuality, or disabled criteria, you are judged on that basis alone and possibly denied equal billing rights in the case.

There are many other ways these policies get phrased, but the result is the same. It's a form of determinism based solely on physical characteristics. Your worth as a human gets boiled down to those deterministic points and nothing else. Merit gets tossed out the window.

The Supreme Court is Right — Corporate America Should Follow.

In the Supreme Court case on affirmative action, one of the undisputed points was the racist past of the universities in question. No one doubted that administrators of Harvard and the University of North Carolina had discriminated against essentially every minority racial group at some point.

Only the left-wing progressive judges looked at that past and said: "Yes, these are the same people who should be able to make decisions on admission based solely on race." The progressives advocated for racist institutions to be given a free pass on "fixing things."

It's a foolish line of thought, and Chief Justice John Roberts was right to denounce it. Reducing everyone to these physical characteristics and making decisions based on that has a term. It's called racism, sexism, etc. We know what these things are as a society.

That we should countenance these arguments and beliefs once again, after previous generations spilled their blood to rid society of this, is a shame. We're moving backward with these kinds of woke policies and invading the privacy of everyone to meet the "diversity quota" of people who measure such things with spreadsheets, not an inherent love of each person.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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