By Timothy M. Holly, Connolly Gallagher, LLP
Welcome to the discussion.
In an article available here, I raised what might be a controversial topic.
Specifically, I asked, what if you discovered that the bill seeks to compel a private business to demonstrate a plan that, rather than requiring truly equal employment opportunity for all and forbidding discrimination against any who are of a protected class under the law, focuses on the hiring specifically of men and people who are not “of color”? Let me be more specific in my hypothetical. How would you feel about a bill that provides for preference in granting necessary business licenses to those who convince the State that they have a plan that, rather than providing for recruiting and hiring on an equal opportunity basis (without sex or race serving as even motivating factors), which is a laudable and certainly lawful practice, focuses specifically on the hiring of men and people who are not “of color”?
Is that any better? Many would find that shocking and disturbing. Indeed, many would argue that enables and even encourages and causes sexism and racism in hiring by private employers. Would such a law even be constitutional?
The marijuana bill is different from the hypothetical in that it actually requires, as part of criteria for competitive scoring to determine who can obtain a necessary license, a “social responsibility plan” to show “diversity goals” and a plan to hire “people of color, women, and veterans.” So the urged/ required focus proposed in the bill is indeed based on sex and color, but the favored groups are different from my hypothetical.
Does the chosen sex and color to receive favor make the bill less offensive or more appropriate than the hypothetical?
As of January 29, 2021, Delaware has a provision in its Constitution that includes a “Equal Rights” provision pertaining to race, color, and sex. Neither color nor sex are limited to just one shade or sex. Moreover, multiple laws (e.g., the Delaware Discrimination in Employment Act, Title VII, 42 U.S.C. § 1981) make it unlawful to hire or contract with sex, color, or race being even so much as a “motivating factor.” The same is true of numerous categories knowing as “protected classes.” Equal rights at least supposedly do not favor only a few who are born part of a segment of the spectrum that is, for whatever reason, favored – even if for benevolent reasons – during any slice of time. Nonetheless, this bill arguably favors one particular sex and only some shades of skin color, in the context of a business with no operations history at all.
Some may feel it is “socially responsible” to hire based on “diversity goals” (meaning making a motivating factor based on sex, race, and color), with particular focus on hiring women and “people of color.” Others may consider that code for – and an indicator of – discrimination, and find the relevant provision of the bill irresponsible based on a view that discrimination is repugnant no matter which person is penalized for what they are (male/female, any color, etc.).
Whether “socially responsible” or not, businesses should consider that, if they are a new business with no history at all – much less no history of discrimination (where perhaps a carefully constructed affirmative action plan might allow for what amounts to lawful discrimination) – and they obtain a license and follow through on a plan to hire women because of their sex or anyone because of their color, they face a high risk of legal liability from anyone of a different sex or color who is not hired. These “social responsibility plans” are likely to become evidence in any such case. So beware!
I most certainly am not urging lawmakers (through more careful drafting) or employers (through pretext) to better hide an intent to urge others or take action to discriminate. Far from it. What I mean to communicate is that law makers and employers should not support, require, urge, or perform discrimination at all. Stated differently, outside the very narrow bounds of formal affirmative action programs (which do not apply nearly as broadly as many people seem to believe), private employers should take great care to not allow any attribute constituting a class that is protected by law to serve as even a motivating factor in any employment-related decision. That is true no matter the sex, color, race, etc. of the person.
In my own personal opinion, it would be very disingenuous for a law maker to claim to be repulsed by difficult-to-identify institutionalized headwinds that are believed to result in discrimination, and to claim to dream of a day when people are judged by the content of their character, but then to support a bill that expressly institutionalizes a form of discrimination. I submit for consideration that, if we want a society where discrimination does not exist and where systems are not built that nearly certainly will result in discrimination, a law that urges and perhaps even requires discrimination should be rejected.
I am in that camp, and that frankly has nothing to do with the issue of marijuana.
Passionate feelings are sure to compete on this issue. Join the conversation and let your representatives know how you feel.
Disclaimer: Any and all opinions contained in the above article and blog post are those of the author. They are not reflective of the Delaware State Chamber of Commerce's official stance on HB150.