Biden’s Radical ‘Racial Equity Plan’ Would Rewrite Discrimination Law for the Worse

Former vice president Joe Biden speaks at a campaign event in Wilmington, Del., July 28, 2020. (Jonathan Ernst/Reuters)
If it were passed, the result would be more violations of free-speech rights in the workplace and economic ruin for countless small businesses.

NRPLUS MEMBER ARTICLE J oe Biden released his “racial equity plan” on Tuesday.

Parts of the plan, such as its major expansion of affirmative action and its dollops of race-related government spending, stick to the point. But it also contains radical changes to America’s employment laws that have little to do with race.

If Biden had his way, even the tiniest employers would be saddled with unlimited legal liability for discrimination or harassment committed by an employee. Just as bad, he would make confusing changes to the legal definition of sexual harassment that could leave small businesses liable for the trivial actions of their workers, and for attorneys’ fees that in many cases would dwarf what they ended up paying workers who sued them.

Right now, businesses with under 15 employees aren’t covered by federal discrimination laws such as Title VII. If they intentionally discriminate based on race, they can be sued under a separate race-discrimination law, 42 U.S.C. 1981. And if they discriminate for other reasons — e.g. sex, age, or religion — they can typically be sued under a state civil-rights law, or for wrongful termination in violation of public policy. Federal law doesn’t limit the amount of lost wages workers can collect in a lawsuit. But it does limit the amount of punitive and compensatory damages that a business has to pay for things such as emotional distress, using a cap that typically varies based on the size of the employer. And it doesn’t hold businesses with fewer than 15 employees liable for violating its prohibitions on unintentional or non-racial discrimination.

The BE HEARD Act, which Biden’s plan endorses, would change this. It would subject even the tiniest employers to Title VII and abolish the limits on compensatory and punitive damages. As if unlimited liability for small business weren’t bad enough, there are the lawyers’ bills that would come with it. Every time an employer loses a federal discrimination lawsuit, it has to pay the workers’ attorneys’ fees in addition to its own. But if an employer wins, it typically doesn’t recover any of its attorneys’ fees from the worker. This means the employer always ends up paying a bundle when it is sued for discrimination. Big businesses can afford to take that sort of hit; small businesses can’t, and might easily go broke due to a single protracted discrimination lawsuit.

The list of problems with the BE HEARD act doesn’t stop there, either; it goes on and on and on.

The act would also allow businesses to be sued long after memories have faded, making it hard for them to defend themselves by extending the statute of limitations on discrimination claims from 180 days to four years. It would classify commonplace hiring criteria as “discrimination,” by expanding the legal definition of unintentional discrimination to put the “burdens of production and persuasion” on employers in disparate-impact lawsuits. And it would hold employers liable for certain unintended pay disparities covered by the proposed Paycheck Fairness Act.

It would hold employers strictly liable for harassment committed by supervisors in violation of company policy, and define even those who lack the authority to hire, fire, or promote anyone as supervisors.

It would allow not just employees, but also interns and independent contractors, to sue employers.

And it would redefine sexual harassment and discriminatory harassment in extremely broad and nonsensical ways that would almost certainly have huge negative consequences:

Conduct may be workplace harassment regardless of whether, for example—

“(A) the complaining party is not the individual being harassed;

“(B) the complaining party acquiesced or otherwise submitted to, or participated in, the conduct;

“(C) the conduct is also experienced by others outside the protected class involved;

“(D) the complaining party was able to continue carrying out duties and responsibilities of the party’s job despite the conduct;

“(E) the conduct did not cause a tangible injury or psychological injury; or

“(F) the conduct occurred outside of the workplace.”

By classifying much more speech as harassment, the BE HEARD Act will lead to censorship and preemptive violations of First Amendment rights in the workplace. Its many provisions hostile to employers will harm American small businesses and make it harder for them to thrive and create jobs. These are, by themselves, reasons enough to oppose Biden’s plan.

Hans Bader is a lawyer with many years of experience practicing civil-rights law.

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