Credit to Twitchy which got to all of this about an hour ago (as I write this). The basic story is as follows. Billionaire Mark Cuban has spent weeks arguing online arguing on behalf of DEI with anyone who will listen. Why he’s decided to do this, I don’t know but he has clearly decided he wants this fight. So, earlier this month, he was fighting with Elon Musk.

Let me help you out and give you my thoughts on DEI
1. Diversity
Good businesses look where others don't, to find the employees that will put your business in the best possible position to succeed.
You may not agree, but I take it as a given that there are people of various… https://t.co/L00fl6ggUD

— Mark Cuban (@mcuban) January 3, 2024

It continued:

You may not agree, but I take it as a given that there are people of various races, ethnicities, orientation, etc that are regularly excluded from hiring consideration. By extending our hiring search to include them, we can find people that are more qualified. The loss of DEI-Phobic companies is my gain.

1a. We live in a country with very diverse demographics. In this era where trust of businesses can be hard to come by, people tend to connect more easily to people who are like them. Having a workforce that is diverse and representative of your stakeholders is good for business.

Anyway, jump forward a few weeks and yesterday Cuban highlighted a story published by NBC News about conservative complaints about airline DEI efforts. This brought a response from an account called The Rabbit Hole.

When shown proof of how DEI discriminates, you wrote it off by stating private entities can do whatever they want. Since then the goalposts have repeatedly been shifted.

Given the weak nature of your defenses of DEI, I suspect there is no real rebuttal to the criticisms myself… pic.twitter.com/VvIcCZ5ZuN

— The Rabbit Hole (@TheRabbitHole84) January 28, 2024

It continued:

Given the weak nature of your defenses of DEI, I suspect there is no real rebuttal to the criticisms myself and others have raised. The only hope is to keep moving the goalposts and pretending the evidence doesn’t exist.

The alternative would be doing the brave thing of acknowledging you were wrong – although this would do a lot of good, it does not seem you’ve arrived at this destination yet.

The Rabbit Hole continued to argue for hiring based on merit not on race, regardless of the race involved. That led TRH to offer this statement of principles:

I believe in a colorblind meritocracy; this means I am against forms of hiring which undercut merit including forms of hiring which cut out merited individuals over their group association(s).

I’ve answered plenty of your questions so can you do one for me:

Title VIl of the…

— The Rabbit Hole (@TheRabbitHole84) January 28, 2024

It continued:

I’ve answered plenty of your questions so can you do one for me:

Title VIl of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Have you have hired people on the basis of demographics on the belief that doing so better positioned your companies to succeed?

Thank you 🙏

Cuban responded:

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

Now how would you… https://t.co/gxdtauMHtz

— Mark Cuban (@mcuban) January 28, 2024

You can click on his tweet if you want to read his challenge back to The Rabbit Hole. But far more interesting is what happened next. This morning, Andrea Lucas, commissioner of the EEOC, entered the chat, so to speak.

In case you need a primer on the law: https://t.co/01S2luOvRw

— Andrea R. Lucas (@andrealucasEEOC) January 29, 2024

Wowza! I don’t think Mark saw that coming. In fact, his admission that race and gender are part of the equation when he hires someone seems pretty clearly like an admission to violating the law.

‼️ This is the beauty of @X –here you have @mcuban openly admitting to violating black-letter employment law, and getting admonished/corrected in real-time by an EEOC Commissioner (@andrealucasEEOC). For the entire world to see. https://t.co/EbmV3dfcDg https://t.co/8ynr0VsVd5

— America First Legal (@America1stLegal) January 29, 2024

Not a great look. People could potentially sue him based on his statement if they thought they might have been adversely impacted for hiring. Cuban went quiet for a while but a few hours later he was asked about the EEOC Commissioner’s comments and he offered this response.

All of our decisions are based on hiring the best candidate. Can’t say it any more often than I have

— Mark Cuban (@mcuban) January 29, 2024

You may notice that’s not at all what he said a day earlier. You can scroll up and see his tweet for yourself but here’s what he said:

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.

That’s his actual position as opposed to the one he came up with hours after what I assume was an eye-opening chat with his attorneys. Finally, here’s a bit of what EEOC Commissioner Lucas wrote last year in a piece for Reuters:

There are distinct but similar statutory sections of the Civil Rights Act — Title VI and Title VII, respectively — that govern the education and employment contexts. Prior to today’s ruling, the Court permitted universities to use race as a factor in admissions, based on their interest in promoting “diversity.” Not so in the employment context. 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…

…even in the limited contexts in which affirmative action currently is permitted, an employer still cannot use racial or sex-based quotas. Companies also cannot take race-motivated actions to maintain a demographically “balanced” workforce.

I’m not sure why Mark Cuban didn’t know this or why he forgot about it yesterday but I bet he won’t forget publicly again anytime soon. In any case, as a defender of DEI he has completely given away the game.