Federal commissioner fires back at Mark Cuban for diversity claim, delivers warning about DEI: 'More problems'

Andrea Lucas, a commissioner for the U.S. Equal Employment Opportunity Commission, spoke to Fox News Digital about a viral tweet from billionaire business mogul Mark Cuban that she says could potentially open him up to a lawsuit and speaks to one of the many misperceptions the public has about DEI.

Lucas told Fox News Digital that "certainly there's a lot of confusion over DEI programs and what you can and can't do with respect to race or sex or other protected characteristics" and that Cuban’s viral tweet illustrates the misunderstanding that "as long as you don't use race or sex as the dispositive factor or the sole factor, it's okay to use it as a plus factor."

"That's just fundamentally wrong," she added.

"I only ever hire the person that will put my business in the best position to succeed," Cuban posted on X earlier this week sparking a social media firestorm. "And yes, race and gender can be part of the equation. I view diversity as a competitive advantage."

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Lucas responded on X telling Cuban he is "dead wrong" on the law and told Fox News Digital that Cuban’s thinking opens him up to a potential lawsuit.

"If any employer, whether private or public, uses race or sex or any other protected characteristic, particularly race or sex, as any factor in their decision-making process for any employment decision then they've violated Title VII and an employee that's been harmed can file a complaint with the EEOC and then if they get a right to sue letter, they can file in federal court," Lucas said.

Lucas spoke to Fox News Digital about the idea of diversity "quotas", which have been a controversial issue with many prominent companies and governments in recent years, and said that while hiring "goals" are not prohibited by the law, quotas can run afoul of the law. 

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"A goal, per se is not prohibited," Lucas said. "But there's lots of ways that you can end up violating the law or having it be used as evidence of violating the law if it indicates that you're using race or sex or another protected characteristic as a factor in your decision making. Quotas absolutely are a direct violation of Title VII, so if you are indicating that goal really is an actual requirement or a hard target, that you will be hiring this amount of people or you will be promoting this amount of people, that’s absolutely a facial violation of Title VII."

Lucas, who has previously written about how companies should look at diversity programs, told Fox News Digital that some of the misperceptions about DEI stem from a misunderstanding of the words. 

"So a lot of people hear the words diversity, equity and inclusion and think, well, all of those sound like great concepts," Lucas said. "I like fairness. Who doesn't like fairness? I like equality. What's wrong with equity? But the reason that there's been a shift from focusing on equal employment opportunity to equity is for a reason. Words mean something, and equity and equality are not the same concept."

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Lucas continued, "I like to remind people, we are the Equal Employment Opportunity Commission, we are not the equal outcomes commission. That is just a fundamentally different mission. There may be different outcomes at different points for different employees. That's not mandated by the law for everyone to arrive at the exact same place. What matters is that employers are treating all of their employees the same without relying on their skin color or their sex or other protected characteristics."

Cuban later posted on X a conversation between Lucas and EEOC Vice-Chair Jocelyn Samuels and called it an "interesting conversation" that showed "smart people can disagree on these issues."

"Smart people cannot disagree about some basic principles of law," Lucas said in response to that post. "And those principles are, there's no such thing as reverse race discrimination. There's just discrimination. Discrimination based on race is always illegal. It doesn't matter which group is being referenced. It doesn't matter which group is doing the discriminating or being discriminated against."

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"There's no good form of race discrimination and another basic principle that no one can disagree about is that Title VII states that if you are using race or sex as a motivating factor, you're violating the law. That's absolutely not in dispute. It's a clear text of the law. It's a clear agency official position. So anyone who's trying to muddy the water on that front, is entirely mistaken."

Lucas told Fox News Digital she is "deeply concerned" about the recent DEI push causing more problems than it solves.

"When people focus on equity focused solutions they are not actually fixing existing discrimination and they may be trying to fix existing discrimination by introducing more discrimination," Lucas said. "But a cycle of discrimination is never going to fix anything. Two wrongs will never make a right. If people are concerned about barriers for particular groups in our society, equal opportunity is the way to go forward and there are many ways to address and eliminate barriers that people may face, in hiring, promotion, firing that are entirely race neutral and actually get at the problem."

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"I'm really concerned that DEI ends up introducing more problems than it actually solves."

Fox News Digital reached out to Cuban for comment but did not receive a response.

On Monday afternoon, Cuban posted on X that he "never" hires people based on skin color if two people have equal credentials.

"But remember it’s rare that two people are absolutely equal," Cuban added. "In fact it’s pretty much impossible for that to happen. People aren’t clones It’s always judgment and we always hire the person who puts the company in the best position to succeed."