EEOC commissioner schools Mark Cuban on Title VII hiring practices

Mark Cuban, a billionaire investor and personality on Shark Tank, was met with some resistance from a top official in the U.S. Equal Employment Opportunity Commission Monday when he tweeted that diversity in hiring can be a “competitive advantage” for a company and influence his hiring decisions. 

“I’ve never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage,” Cuban tweeted

EEOC Commissioner Andrea Lucas told Cuban he was “dead wrong” on discrimination law. 

“EEOC Commissioner here. Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can’t even be a ‘motivating factor’ — nor a plus factor, tie-breaker, or tipping point. It’s important employers understand the ground rules here,” Lucas tweeted. 

In separate tweets, Lucas cited employment law and linked to the agency’s race and color discrimination guidance. 

“Can race/sex ‘be part of the equation’ for an employment decision, as long as it isn’t the ‘but-for’ factor? Generally, no. Title VII uses ‘motivating factor’ liability. This isn’t an opinion; reasonable minds can’t disagree on this point. It’s the plain text of Title VII,” Lucas tweeted

An employment law expert previously told HR Dive that diversity, equity and inclusion initiatives not tied to hiring decisions, such as in recruiting, are less likely to run afoul of discrimination law. 

“Trying to recruit a diverse pool of candidates shouldn’t be a problem,” the lawyer said.

America First Legal, a conservative nonprofit, has filed a number of complaints with the EEOC alleging discrimination in DEI initiatives at major corporations. The nonprofit, which is headed by former Trump Administration Advisor Stephen Miller, has targeted Major League Baseball for running diversity programs it said exclusively provide development opportunities for “qualified minority and female candidates.” It has also filed complaints against American, United and Southwest Airlines for discriminatory practices in their hiring and retention programs aimed at women and people of color, among other companies.