Conservative Activists Challenge Workplace Equity Programs Using Civil Rights Act of 1866

NEW YORK — Opponents of workplace diversity programs are increasingly using a section of the Civil Rights Act of 1866 to challenge equity policies and funding for minority-owned businesses. Section 1981 of the act, originally intended to protect formerly enslaved people from economic exclusion, is now being weaponized by conservative activists, who are citing it in lawsuits against companies and institutions.

The American Alliance for Equal Rights, run by conservative activist Edward Blum, is using Section 1981 to go after the Fearless Fund, a venture capital fund that invests in businesses owned by women of color. The group argues that the Fearless Strivers Grant Contest, which awards $20,000 to black women business owners, violates Section 1981 by excluding some people based on race. A federal appeals court has temporarily blocked funding for the grant program while the case proceeds.

The use of Section 1981 in these lawsuits is part of a broader battle over racial considerations in the workplace following the Supreme Court’s ruling ending affirmative action in college admissions. Opponents of diversity programs are using this section to challenge policies that they argue are reverse discrimination. However, there are concerns that this tactic could turn civil rights law upside down.

Section 1981 has a high standard of proof, requiring the plaintiff to show that race was the central cause in denying a contract opportunity, not just a motivating factor. This standard was established by the Supreme Court in a 2020 decision. In contrast, Title VII of the 1964 Civil Rights Act, which protects employees from employment discrimination based on race, has a lower standard of proof and a longer process for filing a lawsuit.

The impact of these lawsuits has already led some companies to change their criteria for diversity fellowship programs. Law firms Morrison Foerster and Perkins Coie have opened their programs to all applicants, regardless of race. Pfizer also dropped race-based eligibility requirements for a fellowship program. These changes could have wider implications for other grant programs that target specific demographic groups.

It is possible that the case against the Fearless Fund could end up at the Supreme Court, adding to the ongoing debate about race and discrimination in the workplace. While some argue that Section 1981 was not intended to cover cases like this, the court’s current composition may lead to a different outcome.

In conclusion, the use of Section 1981 to challenge equity policies and funding for minority-owned businesses is becoming a growing trend. These lawsuits raise important questions about the interpretation of civil rights laws and the intersection of race, discrimination, and affirmative action in the workplace. As the cases progress, their outcomes will have implications for how diversity and inclusion programs are structured and implemented moving forward.