Top Project 2025 Policymaker Calls Out 'Reverse Discrimination' During Congressional Testimony

5 months ago

Jonathan Berry, a Project 2025 policymaker, testified in front of the House Oversight Committee hearing last week.

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Transcript

00:00Good morning, Chairman Comer, Ranking Member Ocasio-Cortez, and members of the committee.

00:05My name is Jonathan Berry, and I am the managing partner of the law and public policy strategy

00:09firm Boyden Gray PLLC.

00:12There I provide strategic counsel and litigate on issues involving the overlapping bureaucracies

00:17of the administrative state and corporate America, including matters relating to diversity,

00:23equity, and inclusion programs in the workplace.

00:26I want to thank you for inviting me to testify today on the important subject of the recent

00:32overreach and underreach of the EEOC.

00:36I am honored to currently represent the United States Conference of Catholic Bishops and

00:39other plaintiffs in litigation against the Commission regarding one of its recent rulemakings.

00:44While my views on the subject of today's hearing are informed by my representation of clients

00:49in this and other matters, I do not appear here today on behalf of any client, and the

00:53views I present are my own.

00:56Also do I honor to bring with me here my 10-year-old son, Simon, to witness the committee's important

01:01work.

01:04The Commission has an important and crucial role to play in protecting American workers

01:10from unlawful discrimination and advancing equal opportunity for all.

01:14Unfortunately, too often the Commission currently is working against those objectives, creating

01:20the need for congressional oversight.

01:24Three problems stand out when it comes to the EEOC's treatment of race.

01:29First, it has defended DEI initiatives in the workplace, but those initiatives often

01:33violate Title VII.

01:35So-called reverse discrimination is unlawful discrimination under Title VII.

01:41When corporations make recruiting, training, management, and hiring decisions that treat

01:46nonwhite employees preferentially on the basis of race, those initiatives are generally unlawful.

01:53Yet the EEOC has let this discrimination go largely unpoliced, necessitating a surge

01:58in private lawsuits.

02:00Second, the Commission has sued an employer, in this case the Sheetz gas station chain,

02:07under Title VII's disparate impact provision for merely performing criminal background

02:12checks.

02:13But Title VII's disparate impact provision is likely unconstitutional, and the EEOC uses

02:19this powerful weapon inconsistently in any event.

02:23When the Commission employs this powerful tool arbitrarily, it becomes impossible for

02:28employers to plan around or predict how the law will be enforced.

02:32And third, the EEOC has continued to require that all employers submit workforce demographic

02:39data that breaks their employees down by race above a certain employer size.

02:45But it is wrong to require employers to classify their employees into racial categories and

02:52report the results absent particularized suspicion of discrimination.

02:57It encourages everyone involved—the government, the employer, and the employee—to evaluate

03:03the merits of a human being on racial terms.

03:06So accordingly, I have three oversight recommendations for the Committee to consider.

03:12First, the Commission must be held to account for declining to stamp out racially discriminatory

03:18DEI programs.

03:20For instance, one firm alone that we sometimes work with, America First Legal, has filed

03:25over 30 discrimination charges against gigantic companies like Disney and Salesforce and IBM

03:33whose DEI programs are facially discriminating on the basis of race.

03:38This Committee could follow up, if it chose, to demand explanation for the lack of prompt

03:43EEOC action on these charges.

03:46Second, the EEOC must be held to account for how it sets its enforcement priorities.

03:52Particularly, with regard to disparate impact liability, the Commission could bring suit

03:57against almost any employer selection procedure.

04:01Why has the EEOC targeted criminal background checks and not college degree requirements,

04:06which often have profound disparities that result?

04:09The Commission should be asked that question.

04:12And third and finally, Congress should end the EEO1 data collection, or at least limit

04:18its imposition to cases where the Commission has particularized suspicion.

04:23There is no need to continue this extremely broad data collection, and its racial classification

04:29mandate forces American employers to view their employees as members of racial categories

04:36and not simply as individual human persons possessing dignity given by God.

04:43Thank you again for the chance to testify this morning.

04:45Thank you.

04:46And I recognize Ms. Stettman for her opening statement.

Top Project 2025 Policymaker Calls Out 'Reverse Discrimination' During Congressional Testimony

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