Are Race-Based Firings Legal? Twilio's About to Find Out
this week, twilio laid off 11% of its staff. the race of employees was a determining factor.
This week, Twilio laid off 11% of its staff. The race of employees appears to have been, by management’s own admission, a determining factor.
Max Meyer reports.
To be racist or antiracist, that is the question. Wait, scratch that; you can now be both.
Twilio CEO Jeff Lawson announced Wednesday that his company would lay off 11% of its workforce, about 800 people. We don’t know exactly which roles were cut, but the company press release suggests they were largely non-technical customer support roles. Luckily, we do know some details. I’m talking about the races of the people he fired. Really:
“As you all know, we are committed to becoming an Anti-Racist/Anti-Oppression company. Layoffs like this can have a more pronounced impact on marginalized communities, so we were particularly focused on ensuring our layoffs – while a business necessity today – were carried out through an Anti-Racist/Anti-Oppression lens."
So, the Chief Executive of a publicly-traded company seems to have admitted — in writing — that he conducted race-based layoffs in order to minimize impact on “marginalized communities” that he personally favors.
Besides being an insane thing to admit, it’s also illegal. Here’s Title VII of the Civil Rights Act of 1964:
It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
I am no great fan of the U.S. Equal Employment Opportunity Commission, which enforces Title VII in the workplace. I will not defend its activities, now or ever. I also happen to think that Title VII and the idea of disparate racial impact it spawned, have been very corrosive to American legal traditions — for example, it is possible for plaintiffs in civil rights suits to ignore a respondent’s intent and argue discrimination based on disparity alone. That makes it very difficult to run companies on merit, because any unintentional “disparate impact” against a protected class (or even perceived disparate impact) could be cause for harassment by the EEOC, which files thousands of suits annually. But if there were ever a slam dunk case of race-based labor discrimination, admitted to in official communications, this is it. I mean, come on; they’re bragging about it!
Here’s the play:
Under Title VII, as amended by the 1991 Civil Rights Act, any ex-Twilio employee who proves racial discrimination could recover up to $300,000 in damages from the company. In single cases, it’s probably not enough to disincentivize the behavior, which is unfortunate. But with 800 people impacted by “Anti-Racist layoffs” at a company that’s 75% white and Asian, that means there are at least hundreds of people with a plausible case of race-based discrimination.
Those ex-employees — it only takes one — should be sending letters to Twilio right now demanding that they preserve any and all records having to do with their employment and termination.
I want a lawsuit. I want subpoenas. I want discovery. I want someone to haul that toad CEO Lawson before a Congressional committee, put him under oath, and ask him to explain what exactly an Anti-Oppression layoff is. Are the odds great? No, I have to be honest, they aren’t. We live in a country in which even with laws like Title VII on the books, discrimination against whites and Asians isn’t taboo in corporate, institutional, and — critically — legal circles. And even if things go well, it’s possible that Twilio weasels its way out of trouble by just making a general appeal to “diversity” while ignoring the specific text of the law, which is clear.
What’s doubly bizarre about the whole affair is this was a totally unforced error. The company hired over 2,000 people in 2021, and could have just said that they got too enthusiastic, needed to reset growth, and leave it at that. But they couldn’t help themselves. They needed to advertise their woke bona fides and announce that the layoffs were racially-influenced.
They could also have just cooked up some ostensibly race-neutral metric that resulted in their desired outcome, like Harvard’s “personality score” used to discriminate against Asians in favor of blacks in admission. That probably would have worked! The EEOC even offers advice to business owners on how to arrange such a scheme:
If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business's needs.
For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees' profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.
But curiously, Twilio didn’t suggest that they found a business metric in order to minimize disparities. The “Anti-Racist/Anti-Oppression lens” suggests quite the opposite — that the main factor was in fact race and “oppression,” whatever that means. And if Twilio’s management are as hare-brained as the admission in the CEO’s letter leads me to believe they are, then there could very well be a “smoking gun” on company computers describing their scheme in detail. I know I’d like to find out.