RIGHT SPEAK: Biden’s Radical ‘Racial Equity Plan’ Would Rewrite Discrimination Law for the Worse

Jonathan Ernst/Reuters

If it were passed, the result would be more violations of free-speech rights in the workplace and economic ruin for countless small businesses.

Joe Biden released his “racial equity plan” on Tuesday.

Parts of the plan, such as its major expansion of affirmative action and its dollops of race-related government spending, stick to the point. But it also contains radical changes to America’s employment laws that have little to do with race.

If Biden had his way, even the tiniest employers would be saddled with unlimited legal liability for discrimination or harassment committed by an employee. Just as bad, he would make confusing changes to the legal definition of sexual harassment that could leave small businesses liable for the trivial actions of their workers, and for attorneys’ fees that in many cases would dwarf what they ended up paying workers who sued them.

Right now, businesses with under 15 employees aren’t covered by federal discrimination laws such as Title VII. If they intentionally discriminate based on race, they can be sued under a separate race-discrimination law, 42 U.S.C. 1981. And if they discriminate for other reasons — e.g. sex, age, or religion — they can typically be sued under a state civil-rights law, or for wrongful termination in violation of public policy. Federal law doesn’t limit the amount of lost wages workers can collect in a lawsuit. But it does limit the amount of punitive and compensatory damages that a business has to pay for things such as emotional distress, using a cap that typically varies based on the size of the employer. And it doesn’t hold businesses with fewer than 15 employees liable for violating its prohibitions on unintentional or non-racial discrimination.

The BE HEARD Act, which Biden’s plan endorses, would change this. It would subject even the tiniest employers to Title VII and abolish the limits on compensatory and punitive damages. As if unlimited liability for small business weren’t bad enough, there are the lawyers’ bills that would come with it. Every time an employer loses a federal discrimination lawsuit, it has to pay the workers’ attorneys’ fees in addition to its own. But if an employer wins, it typically doesn’t recover any of its attorneys’ fees from the worker. This means the employer always ends up paying a bundle when it is sued for discrimination. Big businesses can afford to take that sort of hit; small businesses can’t, and might easily go broke due to a single protracted discrimination lawsuit.