Buckeye Institute wants court to end ‘discriminatory workplace initiatives’

A Columbus-based think tank is weighing in on a case in Washington state involving a city employee who has filed a lawsuit alleging the local government’s “racial equity” policies actually create a hostile workplace.

The Buckeye Institute, a free-market public policy think tank, filed an amicus brief in a case Joshua Diemert filed against Seattle. Another nonprofit, the Pacific Legal Foundation, represents Diemert in his case against Seattle.

According to the Pacific Legal Foundation, the city’s Human Services Department hired Diemert in 2013 as a program intake representative. The group said that despite excellent work evaluations, Diemert endured years of harassment and racial discrimination, which he said stems from the city’s Race and Social Justice Initiative effort that started in 2004.

The Buckeye Institute, in its efforts to end workplace equity initiatives it deems discriminatory, argues that these initiatives violate the U.S. Constitution and the federal Civil Rights Act of 1964. In its filing, the Ohio think tank wants the U.S. Court of Appeals for the Ninth Circuit to consider a dissent Justice John Marshall Harlan filed in the 1896 case Plessy v. Ferguson and also consider what the group said was Harlan’s expansive view of the 14th Amendment.

“While government interventions—from affirmative action to DEI training—may spring from a desire to bring about a more equitable society, they suffer from the same noxious segregation statute at question in Plessy v. Ferguson. They sort Americans by race,” Jay R. Carson, senior litigator at The Buckeye Institute, said in a release.

The infamous 1896 Supreme Court determination in Plessy codified the practice of “separate but equal” in U.S. Jim Crow laws.

“By recognizing the wisdom in Justice Harlan’s Plessy dissent, this court can move us towards the color-blind Constitution and the America that Harlan envisioned.”

In its brief, The Buckeye Institute argues that the expansive view of the 14th Amendment that Harlan outlined in his dissent should be considered in deciding the Seattle case.

In his dissent, Harlan argues that it doesn’t matter whether the distinction between races is drawn to ameliorate past wrongs or current lack of opportunity.

“The sin is in the government taking any notice of the race of a U.S. citizen,” the justice noted in the case, which some legal scholars have said ranks among the most important dissenting opinions ever handed down.

According to the think tank, Harlan read the 14th Amendment as prohibiting the government from making any “distinctions based on color.” The justice wrote that the 14th Amendment, along with the 13th Amendment, had “removed the race line from our governmental systems.”

“Applying the reasoning of Harlan’s Plessy dissent, the discrimination that Mr. Diemert experienced is no less odious than ‘separate but equal,’” Carson said.

In February, U.S. District Judge Jamal N. Whitehead dismissed Diemert’s case and granted the city’s motion for a summary judgment in its favor.

“Controlling precedent makes clear that the legal protections against workplace discrimination apply with equal force regardless of the plaintiff’s race,” Whitehead wrote, according to Reason.com. “Yet we must acknowledge what history and common sense tell us: instances of discrimination against the majority are rare and unusual. Diemert does not present that rare and unusual case here.

“…Because the Court finds that D.E.I. and anti-discrimination trainings are not per se unlawful, Diemert’s belief that such trainings constitute an illegal employment practice is viable only if he shows that the RSJI trainings—in content, implementation, or context—harassed him personally on account of his race,” Whitehead added. “Diemert makes sweeping allegations about the effect of the RSJI, but … he is short on details about how it transformed his workplace into a racially hostile environment for him and other white people.”