(Bloomberg) -- One complaint accuses Macy’s Inc. of discriminating against white men. Another levels that allegation against BlackRock Inc.
A third points a finger at, of all things, NASCAR – a largely white sport where Confederate flags were prevalent until they were banned in 2020.
Those three legal actions, and some 20 more like them, have one person in common: Stephen Miller.
Miller, the architect of anti-immigration policies under former President Donald Trump, is emerging as a key figure in preparing a hardline conservative agenda in the event Trump returns to the White House.
And Miller is clear: Now that the US Supreme Court has rejected affirmative action at the nation’s colleges, he’s bent on eradicating diversity initiatives in American business as well.
“We are going to completely transform the legal architecture in this country,” Miller says.
No company or workplace will be left untouched, he vows. Racial-bias training, inclusive hiring practices, efforts to promote women and narrow the gender pay gap: all of that and more is on the line.
The prospect is rippling through corporate America and prompting companies to rethink diversity initiatives. If sustained, the push will inevitably set back the already-slow progress in leveling the playing field for millions of women and minorities.
Trump himself went after corporate diversity before. He issued an executive order in 2020 banning the federal government, as well as its contractors, from offering certain training on gender and race; instruction the order called “malign.” President Joe Biden promptly rescinded the order.
Now, the Trump administration-in-waiting is laying the groundwork for the next, perhaps final battle. The legal advocacy group behind the recent equal-opportunity complaints, Miller’s America First Legal, is part of a well-financed network that aims to populate a second Trump administration with arch conservatives. Their goal is to remove legal restraints that held Trump back and enable a new administration to pursue a sweeping agenda that would upend core elements of US governance.
If Trump is re-elected, Miller and other allies hope to mobilize the Justice Department to prosecute its efforts. The new administration could direct the DOJ and other agencies to stamp out diversity initiatives, which many corporations embraced with new urgency following the murder of George Floyd.
The threat of civil action will hang over every boardroom. Miller doesn’t rule out criminal charges.
The goal: “To completely invert the risk calculus corporations have assumed they’ve had for many years,” Miller says.
His central argument channels the grievance politics of the Trump era and is bound to resonate with Trump’s base of white voters without college degrees.
Miller says affirmative action and diversity, equity and inclusion initiatives – efforts rooted in the Civil Rights Era of the 1960s – are in fact forms of prejudice. He wants to usher in a new era in which no one will get a leg-up because of race, gender, identity or background, even if the goal is to rectify historical inequalities.
“This DEI bigotry is sinister, wrong, immoral – and must be defeated,” Miller says.
That’s not the view from the corner office. Despite well-publicized diversity efforts, white men dominate the nation’s business life. It wasn’t until this year, for instance, that the share of Fortune 500 companies led by female chief executive officers exceeded 10%.
And yet, Miller and his group maintain that it is white men who are being discriminated against.
Gene Hamilton, a Miller ally who played a key role in Trump’s “zero tolerance” policy that led to family separations at the border, acknowledges that many people support efforts to hire women and minorities. He says that support is misplaced.
“I'm sorry that a lot of Americans don't see it this way,” says Hamilton, now general counsel of Miller’s group. “I feel sorry for them.”
Since 2022, AFL has filed 25 complaints with the US Equal Employment Opportunity Commission against a range of companies. The EEOC hasn’t taken up any of them, and it’s unclear if it will. EEOC Chair Charlotte Burrows said in June that the SCOTUS decision on college admissions “does not address employer efforts to foster diverse and inclusive workforces.” A spokesperson for the commission confirmed receipt of the complaints but couldn’t comment further.
Macy's and NASCAR didn’t respond to requests for comment. Macy's this week hired Tracy Preston, a veteran retail lawyer and advocate for corporate diversity, as chief legal officer.
Miller says a second Trump administration would bring to bear the power of the federal government to challenge companies that embrace social justice. He predicts the issue will reach the Supreme Court, where Trump appointed three justices, for a six-member conservative majority.
Miller says his aim is to launch “a full legal civil rights movement.”
The prospect has already prompted some companies to reconsider diversity-in-hiring programs, particularly those offering extra resources to women and minorities.
In April, AFL went after BlackRock for supposedly favoring Black, Hispanic, LGBTQ+ and disabled students for a scholarship program. Last month, the asset-management giant eliminated online references to those cohorts for the program. It now says it seeks students who have demonstrated leadership and exemplified “BlackRock principles in their communities.”
A spokesperson for BlackRock said the firm is “proud” to increase the size of its scholarship and “expand its eligibility.”
PriceWaterhouseCoopers made similar changes to its descriptions for entry-level jobs following a complaint by AFL. PwC didn’t respond to requests for comment. The changes at the two firms have not been reported previously.
Many corporations celebrated and expanded diversity programs in the heat of the #MeToo and Black Lives Matter movements. Now, given the legal risks, they may start to pull back.
David Lopez, a former general counsel of the EEOC, sums up companies’ reaction this way: “They don’t want to get sued.”
“They’ll basically shut down all of these diversity efforts,” Lopez says, “and strangle them in the cradle.”
AFL is part of a larger effort known as “Project 2025” that has brought together dozens of conservative groups to plan for a potential second Trump administration. The group’s 900-page manifesto, which Hamilton wrote and Miller consulted on, suggests mobilizing the civil rights division of the Justice Department against corporate diversity initiatives, among other things.
At stake are requirements that companies report race-related data, a key tool in creating affirmative-action programs. DEI offices within the federal government are also on the line.
Miller’s group is only one part of Trump’s administration-in-waiting. AFL is headquartered in the same Capitol Hill townhouse as a range of other Trump-linked nonprofit groups, including the umbrella organization, Conservative Partnership Institute, led by his former chief of staff Mark Meadows, and the Center for Renewing America, headed by Russel Vought, director of the Office of Management and Budget under Trump.
Together, AFL and CPI reported more than $80 million of revenue in 2022, according to their tax filings. The total for Miller’s group was $44.4 million – up seven times from 2021. Of that, $27 million came from a single anonymous donor. As a nonprofit, the group isn’t required to disclose its donors; Miller declined to comment on the financials.
Miller wants even more money to prosecute the Trump agenda. In a video emailed to AFL’s listserv in October, he addressed the camera with urgency.
“We are engaged in a massive litigation blitz to defend your rights and your freedoms,” Miller said, according to a copy of the email shared with Bloomberg.
Miller held up stacks of papers he said were AFL’s recent lawsuits – one against Meta Platforms Inc., another against the FBI, another against Progressive Insurance.
“One lawsuit after another, one urgent investigation after another – but we need your help,” Miller said. “Please, click below and donate today.”
--With assistance from Silla Brush.
©2023 Bloomberg L.P.
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