Iowa Attorney General Brenna Bird introduced former President Donald Trump during his rally at the Horizon Events Center in Clive Oct. 16, 2023, following her endorsement of him for president at an earlier event. (Photo by Robin Opsahl/Iowa Capital Dispatch)
Iowa Attorney General Brenna Bird again tried to put herself in the national spotlight last week as leader of a group of Republican attorneys general who fixed their sights on Costco over the warehouse retailer’s DEI policies.
The state attorneys sent a stern warning letter telling the company, “We … urge Costco to end all unlawful discrimination imposed by the company through diversity, equity and inclusion (“DEI”) policies. … Costco should treat every person equally and based on their merit, rather than based on divisive and discriminatory DEI practices.”
The letter came about the same time as 98% of Costco’s shareholders voted against a proposal to cut the company’s DEI statements. The vote puts Costco executives in a tight spot of serving the wishes of shareholders or acquiescing to Bird and her friends.
Bird’s office issued a press release with the letter, quoting her saying, “It’s time to ditch DEI. While other companies right the ship and abandon their illegal, woke policies, Costco has doubled down. I’m putting Costco on notice to do the right thing and eliminate discriminatory DEI. No American should be denied an opportunity because they don’t fit the woke mold.”
Bird continued, “Costco needs to show us the proof that they are following the law because they have public statements that cause us great concern. Many other big retailers have changed their policies and are now following federal law, just like President Trump is doing with his executive orders rooting out DEI.”
Burden of proof is on government, not Costco
Irony abounds considering this comes from a lawyer who touts her prosecutorial experience, where those accused of wrongdoing are presumed innocent. And it comes from an administrator who should know the burden of proving non-compliance with employment laws rests on the government, not the employer.
Even so, Bird said Costco executives and directors “need to make sure they’re actually doing the right thing here. That’s what we’re keeping an eye on, and if they don’t, we’ll look at all available options.”
You do not need a bunch of red MAGA caps hanging in your closet to know what “all available options” means in Bird’s eyes. But not all legal scholars share the conclusions asserted by these attorneys general.
Plus, those not wearing MAGA caps might wonder if Iowa’s attorney general has bigger issues closer to home, considering Costco only has four stores in Iowa, in Ankeny, Coralville, Davenport and West Des Moines. Some in Iowa might wonder when we can expect Bird to issue similar “we expect you to follow the law — or else” warnings to businesses with a larger presence in our state and demand they send her proof of their compliance.
Those warnings might include putting companies like CRST or Heartland Express on notice that Bird will “look at all available options” if their trucks break the speed limit or exceed weight limits.
Or a warning might go to Iowa Select Farms, putting the hog confinement company on notice that Bird will “look at all available options” if its animals end up polluting Iowa rivers, lakes and drinking water.
Will Bird put the fear of God into the owners of Iowa nursing homes, such as Care Initiatives and Aspire/Beacon Health, that she and her staff will bring down the wrath of state government on them if they do not fully comply with government regulations designed to protect their residents?
Although Bird professes to be fair-minded, it is hard to imagine politics will not influence her demands that certain corporations abandon policies and practices she chooses to target.
Since taking office in 2023, Bird filed or joined other states in at least nine lawsuits challenging policies of the Biden administration. Now, with Biden gone and time on her hands, it appears she is turning her attention to businesses whose actions or internal policies do not square with the agenda she is taking from our new president.
DEI policies are not automatically illegal
Yet, anyone who steps into Iowa courtrooms knows passionate litigators present two or more sides to an issue. Just look at President Trump’s attempted executive order to cancel the constitutional amendment granting “birthright citizenship.”
It is the same with his and Bird’s attempt to stamp out diversity, equity and inclusion policies in business, not just government — even though these policies on their face seek equal treatment, rather than command discrimination, in hiring, pay, advancement or retention.
Husch Blackwell LLP, a Kansas City law firm with offices across the United States, sent a client alert last week to help employers stay on the right side of the dividing line between legal and unlawful corporate DEI policies.
The firm advised, “The vast majority of DEI programs and policies currently utilized by most employers — which include employee resource groups, optional DEI and bias trainings, and strategies for diversifying candidate pools for recruiting purposes — would appear to fall well outside the definition of ‘illegal’ practices under existing law.”
The alert added, “Indeed, the former chair of the EEOC [the U.S. Equal Employment Opportunity Commission] made clear in a 2023 press release that it ‘remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afford(ed) equal opportunity in the workplace.”
Husch Blackwell told employers they can use lawful DEI programs so long as they avoid quotas and focus their workplace initiatives on promoting inclusion without implementing discriminatory practices. Employers, it said, should use a broad definition of diversity that includes such characteristics as veteran status and life experience, not race, gender or other characteristics.
That brings us back to Bird, who seemingly wants it both ways.
To hear her, Costco should drop statements confirming a desire to have its workforce reflect the breadth of its communities, including the four in Iowa.
Meanwhile, on job postings on Bird’s Iowa attorney general website, this notation appears with a listing for a “farm and freedom lawyer:” “The State of Iowa is an Equal Employment Opportunity/Affirmative Action Employer. All qualified individuals are encouraged to apply.”
Do you suppose Bird intends to follow affirmative action guidelines, even if her friends think they are woke?