Billionaire Mark Cuban is a big fan of diversity, equity and inclusion. That means he’s a big fan of racial discrimination in hiring.
On X, formerly Twitter, Cuban confessed that he gives racial and gender preferences to job applicants on the theory that “diversity” puts his business “in the best position to succeed.”
Cynthia “Cynt” Marshall, the CEO of the NBA’s Dallas Mavericks, which Cuban formerly owned and still operates, proudly proclaimed that she knows “the business case for diversity” and as a result, “made some leadership changes” within the Mavericks organization that resulted in “almost 50% women” and “47% people of color” in leadership because “diversity matters.”
Of course, it’s nonsense that true diversity can be boiled down to something as superficial as someone’s skin color or gender. It’s infinitely more complex.
But putting aside this obvious truth, Cuban and those who follow his lead are on the wrong side of the law.
Andrea Lucas, an Equal Employment Opportunity Commission member, responded to Cuban on X, saying that he was “dead wrong” on the law. She’s right. Race can’t be a “motivating factor—nor [even] a plus factor, tiebreaker or tipping point” in deciding whether to hire, fire, promote or train someone.
That’s as it should be. And anyone, such as Cuban, who thinks that “benign” racial or sex discrimination is lawful, should heed this reminder.
Title VII of the Civil Rights Act of 1964, which governs employment practices, makes it unlawful to hire, fire, promote, demote, train, reward or for any other employment purpose treat someone differently “because of race, color, religion, sex or national origin.”
So, while Cuban claims that he has “never hired anyone exclusively on race, gender [or] religion,” he makes clear that “race and gender can be part of the equation” when he makes employment decisions.
That’s a violation of the law.
The statutory language and the many judicial decisions interpreting it make clear that race and sex cannot be any part of an employment decision. It doesn’t matter if these are just a small “plus factors,” and it doesn’t matter what the employer’s intentions are.
There’s no exemption for trendy notions of “racial justice.”
This should be painfully clear after the U.S. Supreme Court struck down such practices in higher education.
Yet, Cuban attempted to defend his practice from widespread criticism by saying, in effect, that race and sex are part of an applicant’s merit: “All of our decisions are based on hiring the best candidate.”
But what he misses is that the whole point of the Civil Rights Act is that race and sex are simply off-limits. You can’t discriminate on those bases by redefining “merit” to include them.
Incidentally, this is also the exact sort of conduct that the EEOC is supposed to help prevent in employment practices. (The many problems with the expansive scope of the agency’s powers and the selective way in which it enforces its mandates are beyond the scope of this article.)
On its website, for example, the commission explains how a belief that “African American males do not convey a clean-cut image and that they lack the soft skills necessary to service customers well” would be discriminatory. That conclusion doesn’t change if you change the race or the stereotype.
Cuban is a sophisticated businessman with an army of lawyers at his beck and call. He has no excuse for letting his ideology cloud his view of crystal-clear law.
So, how does someone as rich and powerful as Cuban get held to account for defying the Civil Rights Act? The easiest way is through private lawsuits by his employees or applicants who have faced his discriminatory conduct.
Alternatively, the Department of Justice could launch an investigation—though it’s doubtful it will under President Joe Biden. Additionally, every state has its own civil rights analogue, most of which provide for their own private rights of action or investigation by the state’s attorney general.
Cuban has not only showcased his legal (and actual) ignorance for all the world to see, but he has also exposed his businesses to massive private, state and federal liability.
Perhaps he’ll learn what the law requires of him from his critics online, but we doubt it. Like many students, he’ll have to pay for his education—except his expenses won’t be tuition, but rather, legal judgments, civil penalties or fines.
For once, though, the cost of the education will be worth it.
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