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Tucker Carlson Said Biden’s Search for Black Woman as VP ‘Probably’ Violates the Law. He’s Wrong.

Tucker Carlson is seemingly attempting to terrify his fans with warnings about Joe Biden’s potential running-mates, all of whom are Black women.

Among the names said to be on Biden’s list are Georgia Rep. Stacey Abrams, Sen. Kamala Harris, Rep. Val Demings, Rep. Karen Bass, and former national security advisor Susan Rice.

As part of Carlson’s prelude to the real story (that Susan Rice will destroy our nation), Tucker threw out this gem of pseudo-jurisprudence:

For what could very well be the most important job on Earth, Biden has decided to hire exclusively on the basis of qualities that are both immutable and completely irrelevant—race and gender. And that’s it. But wait a second, you ask, isn’t that insulting? Isn’t it wrong? Isn’t it probably illegal? Yes, it is all three of those things. But no one’s pushing back against it so Biden is doing it.

There’s a darker force at play in Carlson’s tantrum: his misuse of legal terms lobbed at Fox viewers is dangerously confusing to those unfamiliar with anti-discrimination law. By peppering utter nonsense with real legal concepts, Carlson bastardizes discrimination law into a twisted mélange of baseless white male indignation.

By accusing Joe Biden of hiring “exclusively on the basis of qualities that are both immutable and completely irrelevant—race and gender,” Carlson raises what are often valid legal concerns. Under federal employment law, employers are indeed prohibited from discriminating on the basis of race and gender. Those characteristics (along with others, such as religion, national origin, and alienage) have long been the basis for the creation of a legally-recognized “suspect class,” with specific rights against discrimination.

The Supreme Court has, since the late 1930s and early 1940s, reasoned that “discrete and insular” minority groups which lack political power and which have a history of suffering discrimination based on an immutable trait have the legal right to be treated as a “suspect class.” On that basis, the Supreme Court has held, legislation that discriminates against a suspect class must survive strict scrutiny to pass Constitutional muster. The creation of suspect classes is the backbone of Equal Protection Law. Sadly for Tucker Carlson and others who use “reverse racism” as a talking point, white men do not have quite the same legal road for addressing their grievances. (They are not “discrete and insular minorities” who generally lack political power.) Carlson probably knows this, but seems to be throwing out ‘picking only Black women is illegal, because I know what ‘immutable’ means’ in hopes that viewers will be dazzled into belief.

That aside, the most glaring legal flaw in the “Biden Can’t Only Hire Black Women!” hysteria is that Biden isn’t hiring Black women. He’s not hiring anyone. Contrary to Mike Pence’s example of pathological sycophantism, the Vice President does not work for the president, nor do running mates work for each other. Joe Biden is a private individual making a private decision to select a running mate. Selecting a running mate is not the same as hiring someone. While Biden’s decision has potential to carry impactful consequences, it is not one governed by federal employment law.

To be abundantly clear, Title VII of the Civil Rights Act of 1964 governs most employment relationships.  Subsection (b) of that law explicitly states that “the United States” government is not an “employer.”  Similarly, subsection (f) exempts state and local government employees.

Under that same Act, an “employee” is (confusingly) defined as “an individual employed by an employer.”  An “employer,” in turn, is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” Joe Biden is not “engaged in an industry.” End of that discussion.

Federal “employees or applicants for employment” do enjoy anti-discrimination protection under a different section of the Act or other an array of similar other laws.  However, presidents and vice presidents are chosen by election — not by job interviews — and do not meet the definition of an “employee” under any of the relevant statutes we’ve examined.  End of that discussion — again.

Even if Biden were “employing” his running mate in a manner that would subject him to federal employment law, he would very likely still have the legal right to narrow his choice exclusively to Black women. Let’s do that analysis, just to close the circle on Carlson’s misinformation.

Title VII of the Civil Rights Act (the portion of the federal statute that addresses employment discrimination) includes what is called the “BFOQ defense.” This is an exception to anti-discrimination law that allows an employer to consider religion, sex, or national origin in just those circumstances where those characteristics constitute a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Biden could certainly argue that as a white man himself, a successful ticket (as well as a successful administration) must include a woman as a running mate. There are lots of valid reasons why such a choice might be made that have nothing to do with a discriminatory intent against men.

True, there are circumstances in which the BFOQ defense was less than totally successful. The restaurant chain Hooters famously argued BFOQ when it was sued by would-be male waiters. That case ultimately ended with a multi-million dollar settlement. Still, in the context of presidential politics, it’s far more likely that a preference for a female candidate would be applauded as a win for diversity, and not as a manifestation of discrimination.

Things are both easier and harder when we’re talking about race. While Title VII’s BFOQ defense explicitly excludes race as an acceptable factor in hiring, plenty of employers are often permitted to make employment decisions based on appearance or physical characteristics.

In industries such as entertainment, the First Amendment rights of creators weigh in favor of choices rooted in physical appearance. That’s why the lawsuit filed by white actors over not being cast in the Broadway show Hamilton did not fare well.

Although casting a musical and selecting a running mate aren’t exactly the same, neither are they wholly different. And this entire analysis assumes that Biden’s choice was only about race. Or, you know, the Black women Joe Biden is considering for VP could be the most qualified individuals for the position.

[screengrab via Fox News]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos