Mark Cuban’s attempt to celebrate diversity, equity, and inclusion (DEI) initiatives may have just revealed illegal hiring practices.
The Dallas Mavericks owner seemingly admitted in an exchange on X that race and gender are factors he considers during the hiring process – a major no-no as confirmed by the commissioner of the U.S. Equal Employment Opportunity Commission (EEOC).
On Wednesday’s show, Megyn was joined by Sara Gonzales, host of BlazeTV’s Sara Gonzalez Unfiltered, and Josh Hammer, host of America On Trial, to discuss Cuban’s comments and why he has “fallen afoul of the law.”
Earlier this week, Cuban got into a back and forth on X with an account called The Rabbit Hole after he posted a link to an NBC News article about criticism from conservatives about airline DEI efforts with the caption “IYKYK.”
When The Rabbit Hole called out Cuban’s past and present defenses of DEI, the billionaire doubled down. “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,” he wrote in part. “And yes, race and gender can be part of the equation. I view diversity as a competitive advantage…”
That is when Andrea Lucas, commissioner of the EEOC, entered the chat. “@mcuban, EEOC Commissioner here. Unfortunately you’re dead wrong on black-letter Title VII law,” she tweeted. “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.”
She then shared a link to an article she wrote last June in the wake of the Supreme Court’s ruling on affirmative action as a “primer on the law” for Cuban. The article states:
“The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity. Today’s Supreme Court decision rejects diversity interests as justifications for race-based university admissions decisions. This brings the rules governing higher education into closer parallel with the more restrictive standards of federal employment law. Employers generally are not permitted to take employment actions motivated by protected characteristics.”– Andrea R. Lucas, Reuters, June 29, 2023
Cuban attempted to clean up his previous tweets, but the damage was done. “All of our decisions are based on hiring the best candidate,” he posted. “Can’t say it any more often than I have.”
Megyn praised Lucas for setting the record straight. “He has fallen afoul of the law,” she said. “You cannot hire someone as a plus-factor or weight the fact that they’re Black or they’re Native American. It’s a hard no. It’s unlawful.”
Even so, Megyn and Hammer agreed that corporations have largely been able to flout the law, particularly in the wake of the protests surrounding George Floyd’s death. “For a while, we basically just have not been enforcing the letter of the law, what the law actually says because of the courts and the administrative state,” Hammer explained. “Good for this EEOC commissioner for trying to reassert what the law actually says, especially after the affirmative action case.”
While Cuban might say he believes diversity is good for business, Gonzalez joked the makeup of his basketball team implies otherwise. “The key to success for a business is of course hiring based on merit, and experience, and expertise,” she said. “You know why I know Mark Cuban understands the ridiculousness of it? Because if he was truly worried about diversity in every shape, way, or form, he would have a bunch of fat white guys on his basketball team. Why doesn’t he? Well, because… he knows that that won’t make his team better.”
In her view, Cuban just opened himself up to a host of litigation. “I am calling for any white man who has not been hired by the Dallas Mavericks, file that lawsuit,” Gonzalez said. “Everyone needs to be filing these lawsuits to expose these people because I think that’s going to be the only way to deter them from engaging in these practices.”
You can check out Megyn’s full interview with Gonzalez and Hammer by tuning in to episode 714 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.