Attorney General Miyares Joins States in Challenging Department of Commerce’s Unlawful Race-Based ‘Best Practices’ Guidance

RICHMOND, Va. – Attorney General Jason Miyares joined 18 other states in submitting a public comment letter challenging the legality of the U.S. Department of Commerce’s “Businesses Diversity Principles” proposal. The proposed “best practices” guidance allegedly seeks to increase “diversity, equity, inclusion, and accessibility” (DEIA) throughout corporate America by promoting racial discrimination and fundamentally anti-American principles.

“The Biden Administration’s favorite misuse of power is to use their unelected bureaucrats to push discriminatory policies down the lives of everyday Americans without congressional approval. Private companies should hire the best candidate for a position – an individuals race or ethnicity has no impact on their work ethic or qualifications,” said Attorney General Miyares. “Race based hiring is illegal, and the federal government cannot force it upon private companies.”

Recently, White House Press Secretary Karine Jean-Pierre asserted that the Administration seeks to advance “equity” in every policy. Indeed, one of the first Executive Orders signed by the president outlined the Administration’s “ambitious, whole-of-government approach to racial equity” and directed federal agencies to “continuously embed equity into all aspects of Federal decision-making.”

The proposed guidance runs afoul of the law in three ways:

• First, the Commerce Department’s proposed race-based employment policies violate the U.S. Constitution’s Equal Protection Clause.
• Second, race-based employment decision-making violates Title VII and related civil-rights laws.
• Third, the discrimination that “cannot be done directly” under governing law also “cannot be done indirectly” through end-run means consciously aimed at satisfying racial targets.

The Commerce Department’s Business Diversity Principles would push businesses to “strive to meet diversity targets in their long-term workforce plans” and assess DEIA performance using “demographic data across all levels and departments.”

The Biden Administration wants to tell private businesses to hire certain individuals based on racial preferences. If they do not, according to the government, those businesses are not using “best practices.” Such practices are immoral, illegal, and regressive.

Race-based employment practices are illegal as invidious discrimination. As the Supreme Court reasoned, “[e]liminating racial discrimination means eliminating all of it.” That should—and legally, must—be square one for any employment “best practices” the Commerce Department promulgates.

In addition to Virginia, the following states hope to work with the Commerce Department to promote meaningful diversity of thought, experiences, and skills that comply with federal and state law. In the meantime, the following states will continue to oppose measures that perpetuate unlawful treatment of individuals on the basis of race: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Carolina, Tennessee, Texas, and West Virginia.

The commenting letter can be read here.

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