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Discriminatory ‘Diversity’

‘Favoring one race necessarily means disfavoring those of another race.’

Dec. 19, 2023 6:28 pm ET

Judge James Ho of the Fifth U.S. Circuit Court of Appeals, concurring in Price v. Valvoline, an employment-discrimination case decided Dec. 15 (citations omitted):

I write separately to highlight Plaintiff’s contention that the use of the term “diversity” may be evidence of his employer’s discriminatory intent.

Specifically, Plaintiff alleges that a plant manager told a supervisor that the company “needed more diversity in the workplace.” Plaintiff took the reference to “diversity” to mean that the company should hire fewer African Americans in the future, due to the racial composition of the existing workforce at the plant.

Cases like this reflect the growing concern that diversity has increasingly become a code word for discrimination.

Courts have long worried that diversity efforts can lead to discrimination in the workplace. The same concerns apply to disparate impact theory as well.

Likewise, courts have warned that diversity has become the “ ‘rationale of convenience’ to support racially discriminatory admissions programs” at many colleges and universities. Members of the Supreme Court have admonished educational leaders that “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ”

And for good reason. It’s no defense that a diversity policy may be well intended—and that it’s designed, not to disfavor any particular group, but to favor other groups. That’s because favoring one race necessarily means disfavoring those of another race—whether at a company or on a college campus.