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 temporarily blocked funding for Fearless Fund's grant program as the case proceeds, the AP reports.
Activists have brought lawsuits using the 1981 section against other companies and institutions, including insurance company Progressive and pharmaceutical giant Pfizer. The battle over racial considerations is shifting to the workplace following the US Supreme Court's June ruling ending affirmative action in college admissions. While the 1981 section had been used well before the latest affirmative action ruling to prove reverse discrimination, Alphonso David, Fearless Fund's legal counsel and president of the Global Black Economic Forum, said there's a "coordinated use of Section 1981 now that we did not see before." Randolph McLaughlin, a civil rights attorney and law professor, said using the 1866 law is "a very clever game plan. They want to turn civil rights law upside down." Here's a look at possible effects of:
- The Fearless Fund case: American Alliance for Equal Rights argues that the fund's Fearless Strivers Grant Contest, which awards $20,000 to Black women who run businesses, violates Section 1981 by excluding some people because of their race. Attorneys for the Fearless Fund have argued that the grants are donations, not contracts, and are protected by the First Amendment, per the AP. David said 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. Other foundations, he said, "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?"
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- Similar lawsuits: Some companies already changed their criteria for diversity fellowship programs. Law firms Morrison Foerster and Perkins Coie opened theirs to all applicants of all races in October, changes the companies said were in the works before Blum sued them. He later dropped the suits. Previously, programs for first-year law students were aimed at students in historically underrepresented groups. Morrison Foerster's fellowship program now caters to students with demonstrated commitments to equity and diversity. Perkins Coie opened its fellowship programs to all, regardless of race, gender, or LGBTQ identity. Pfizer dropped race-based eligibility requirements for a program designed for college students of Black, Latino, and Native American descent. George Rutherglen of the University of Virginia suggested companies no longer "explicitly consider race in making these decisions. Look to other conditions and requirements that might achieve the same objective."
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