What race is your company? Asian, Samoan, American Indian, other?

If you find that question absurdhardhat you probably haven’t heard (I hadn’t) that a for-profit can be be African American — an African American person — under federal law.

According to Matt Bowman, that was the  overwhelming consensus view by an Obama appointee to the Fourth Circuit court of appeals. The ruling allows minority-owned companies to object to racial discrimination committed against them under the Civil Rights Act of 1964.

Bowman explains that in Carnell Construction Corporation v. Danville Redevelopment and Housing Authority, an African-American-owned for-profit construction company in Virginia accused a local government—which had awarded the company a federally subsidized building contract—of racial discrimination during the building project.

Carnell Construction’s African-American owner did not personally bid on the contract. That was all done in the name of the company. Therefore, the court had to consider whether a for-profit corporation can be a racially identified “person” who may legally bring a “discrimination” charge before the court.

The court emphatically said yes, citing two reasons that may begin to sound familiar to those of you who know the arguments in Conestoga and Hobby Lobby.

First, the court reached the commonsense conclusion that a closely held for-profit corporation is an enterprise undertaken by a group of people. Those people have characteristics, such as race, that they bring to work every day and can’t leave at home. If discrimination occurs due to the owner’s race, the Title VI ban on discrimination is implicated even though the company is the technical victim of that discrimination.

“Several other federal appellate courts” agree on this, the Fourth Circuit noted. It quoted the federal appeals court in New York as correctly saying it would be “hard to believe” that discrimination could be allowed to occur against a company because of the race, color, or national origin of the owner, and yet no one could sue—not the owners, because they aren’t parties to the contract, and not the corporation, because it is a corporation.

If corporations can have a race and exercise the “right” to abortion and privacy, Bowman ask, then why can’t they be religious? Why the dual standard that discriminates against the religious?

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  • Douglas Johnson

    As to the last question, I suppose one would argue that the religion of the owner is a choice, unlike race, and furthermore it’s a choice that does not have to be outwardly apparent, again unlike race. But if that argument holds, then let’s say you refuse to award work to Carnell not because the owner is black but because you oppose the fact that he has enrolled in the government minority business enterprise program that you oppose. Like religion, MBE programs are a choice.

    • Marc Vander Maas

      We have to keep in mind that there are times that, once chosen, there are times that religion must be outwardly apparent if it is sincere. And it really has to be up to the individual’s conscience to determine what those times are.