The act was meant to protect formerly enslaved people from economic exclusion
NEW YORK (AP) — Opponents of workplace diversity programs are increasingly banking on a section of the Civil Rights Act of 1866 to challenge equity policies as well as funding to minority-owned businesses.
Section 1981 of the act was originally meant to protect formerly enslaved people — or Black people specifically — from economic exclusion. But now the American Alliance for Equal Rights — a group run by Edward Blum, the conservative activist who challenged affirmative action in higher education and won — is citing the section to go after a venture capital fund called the Fearless Fund, which invests in businesses owned by women of color. A federal appeals court
Attorneys for the Fearless Fund have argued in court filings that the grants are donations, not contracts, and are protected by the First Amendment.
David, the Fearless Fund’s legal counsel, says that if these types of grants are considered contracts, one can make the argument that grants issued in many other forms and contexts could also be considered contracts.
“Think of every foundation out there that issues grants,” David said. “They issue grants to people of different demographic groups. They issue grants only to women. They issue grants to survivors of earthquakes. Are those all contracts?”
Angela Reddock-Wright, an employment and Title IX attorney and mediator based in Los Angeles, believes it is “very possible” that the case could end up at the Supreme Court.
“Ideally, the court would decline to hear this matter on the grounds that Section 1981 was not intended to cover matters such as this, but this court appears to operate under different rules and standards,” she said.What impact have similar lawsuits had?
Some companies have already changed their criteria for their diversity fellowship programs.
Law firms Morrison Foerster and Perkins Coie opened their diversity fellowship programs to all applicants of all races in October, changes the companies said were in the works before Blum filed lawsuits against them. He subsequently dropped them. Previously, the programs for first year law students had targeted students in historically underrepresented groups.
Morrison Foerster’s fellowship program now caters to students with demonstrated commitments to equity and diversity. Perkins Coie announced that it had opened its fellowship programs to all applicants, regardless of their race, gender or LGBTQ identity. In a statement, Perkins Coie said the changes arose as part of updates to its diversity and inclusion policies following the Supreme Court’s ruling on affirmative action.
Last February, Pfizer dropped race-based eligibility requirements for a fellowship program designed for college students of Black, Latino and Native American descent. A judge had dismissed a lawsuit filed by the conservative nonprofit Do No Harm, which claimed Pfizer’s program violated Section 1981, but Do No Harm is appealing the ruling.
“What would work in (companies’) favor is to lower their profile,” said University of Virginia’s Distinguished Professor of Law George Rutherglen. “Which means they do not explicitly consider race in making these decisions. Look to other conditions and requirements that might achieve the same objective.”
