Corporate Responses to Racial Unrest Editors’ Introduction

The year 2020 set into motion a perfect storm that would lead to the global panic ignited by the murder of George Floyd in late May of that year. The COVID-19 virus impacted billions of people around the world. With many forced to shelter in place at home, some Americans for the first time (and an exhaustingly innumerable time for others) observed up close the inequality apparent in American policing. On average, Black Americans are 2.9 times more likely to be shot and killed by the police, with very few officers held accountable and prosecuted for these deaths. ¹ One cannot make sense of this special section on Corporate Responses to Racial Unrest without an examination of this fact and the events leading up to Floyd’s murder. Statistically speaking, however, the year 2020 did not signal anything unusual. In that year, according to Statistica.com, U.S. police killed 1,020 people. Fatalities had been rising steadily from 981 in 2017 to 983 in 2018 and 999 in 2019. ² It is not immediately apparent how best to interpret these numbers. What justifies police use of deadly force, and in turn, what is an acceptable rate of police killings per year? Or is this even a productive line of thought? The effectiveness of police power in the United States has been a standing debate since the foundations of American government. ³ And the nature of inequality marked by race within policing has been demonstrated countless times in the literature. ⁴ Reforming the phenomenon of “policing” in the United States, however, though simple to call for, is complicated to enact—not least owing to the “blue wall of silence” that protects police officers from the consequences of misconduct and the near-term spikes in crime and expenses that the very communities who are most disadvantaged by current policing practices are forced to bear.

Nonetheless, this special section is not about the nature of policing nor police killings nor does it attempt to make policy suggestions on how policing should change. This special issue, however, cannot make sense apart from the murder (in the second- and third degree) and manslaughter of George Floyd on 25 May 2020 by then-Minneapolis police officer Derek Chauvin. The fact that now ex-officer Chauvin was in a position to perpetrate the violent crime raises questions regarding the limits of personnel management as a mitigator in police misconduct. As Max Schanzenbach has pointed out, there are indicators of police misconduct that are easy to spot. Fixes, however, remain complicated by a host of informal, administrative, and procedural challenges. ⁵ Ex-officer Chauvin was a beneficiary of these complications. In 2017, for example, Chauvin kneeled on the back of a fourteen-year-old Black boy for seventeen minutes. Neither this nor the twenty other complaints against Chauvin over the course of his nineteen-year law enforcement career received scrutiny or public outcry. The events of 25 May 2020, however, sparked a flash of outrage across the country and in much of the world, bringing much needed attention to the use of excessive force on Black and brown Americans and the lack of accountability that is often afforded to the police.

Specific to this special section, the murder of Floyd caused an unusual reaction from corporations. The death of a Black man at the hands (and knees) of law enforcement is neither new nor isolated. And yet the quantity and nature of corporate responses to Floyd’s death, along with the public repudiation of systemic racism, felt different. Corporations began to release “We stand against …” statements across their platforms. And DEI programs became du jour. Some of the largest corporations in the world began to donate or pledge monies to Black causes. According to The Washington Post, America’s largest public companies and their foundations committed nearly $50 billion to address racial inequality. ⁶ Google committed to donating $50 million to historically Black colleges and universities. JPMorgan Chase allocated $30 billion in housing and business loans for Black communities. Goldman Sachs launched their “One Million Black Women” campaign where they committed $10 billion in direct investment capital and $100 million in philanthropic support to address, what their website terms, the “dual disproportionate gender and racial biases that Black women have faced for generations.” ⁷ Again, this has all felt different and hopeful. And yet there was also cause for suspicion. Just as there is greenwashing there is also race washing.

Legally speaking, such corporate responses sit within a publicly traded company’s duty to act in the financial interests of their shareholders. This is the corporate law doctrine of shareholder primacy. ⁸ The landmark case of the doctrine is Dodge v. Ford Motor Co. (1919). By 1916, the Ford Motor Company had a capital surplus of $60 million. Adjusting for inflation, this amounts to $1.674 billion in 2023 purchasing power. Henry Ford, as president and majority stockholder, made it his mission to cut the cost of the Model T for consumers and increase the wages for his workers. He also attempted to end the special dividends program for shareholders in favor of investments and improvements in new plants that would both increase production and jobs while shaving costs and prices for Model T consumers.

Ford defended this move in public by stating:

My ambition is to employ still more men, to spread the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes. To do this we are putting the greatest share of our profits back in the business.

Ford could have presented his vision as a strategy toward long-term profitability. And perhaps he believed that. When Ford expressed his vision in language that did not accord with the maximization of shareholder value in public, however, he entered a gray area in the laws of corporate governance. In fact, the minority shareholders objected, with two brothers, John Francis Dodge and Horace Elgin Dodge, eventually bringing suit. The Michigan Supreme Court held that Henry Ford was legally bound to operate the Ford Motor Company in the interests of its shareholders first and foremost. And wherever charitable policies that benefit the employee or customer clash with this obligation to maximize shareholder profits, the organization is vulnerable to suit under the shareholder primacy doctrine. The holding of the Michigan Supreme Court, in fact, declared an extra dividend of $19.3 million to the Ford Motor Company’s shareholders (roughly, $538,500,100.92 in 2023 purchasing power).

Dodge v. Ford Motor Co. (1919) is a good example of a clear holding muddying the law. As the literature repeatedly reminds us, the business judgment rule grants corporate executives a wide margin of deference in determining corporate actions as well as a considerable hedge against shareholder primacy. ⁹ Dodge v. Ford itself upheld the business judgment rule. Shareholder primacy is therefore not the airtight doctrine a cursory reading of Dodge v. Ford Motor appears to present. The corporation is granted wide discretionary deference in determining what’s best for business.

The relevance of this balance between shareholder primacy and the business judgment rule for the topic of this special section is not insignificant. A corporation’s social responsibility is a relevant variable in its market appeal. In fact, according to the 2023 Edelman Trust Barometer (ETB), businesses are consistently ranked as the most trusted institution on the global stage. ¹⁰ Businesses outpace governments and nongovernmental organizations both on grounds of competency and ethics. Consumers expect more from businesses in terms of social engagement and responsibility. Issues such as climate change, economic inequality, energy shortages, health care access, trustworthy information, and workforce reskilling rank high among respondent expectations of business’s social engagement. The rise of the B-Corp movement has been a fascinating turn within the history of corporations. ¹¹ And yet, as Malia Lazu from MIT Sloan’s Inclusive Innovation Economy and others have pointed out, there are reasons to be suspicious, particularly on the corporate response to racial unrest. ¹²

The editors of this special section have been comparing notes on these developments for the past three years from our respective specializations in race, history, mutual aid, informal economies, law, and philosophy. Anecdotally, the reporting of the moment appeared to affirm the sense of the possibility of not simply addressing systemic disadvantage but redressing its discrete forms. Both of us tend toward hope. So, naturally, we frequently discussed what scenario was worth hoping for.

Particularly in the early summer of 2020, there was a flashpoint of public goodwill “for change” and an enormous amount of social pressure placed on public institutions to demonstrate ready capitulation and compliance. And yet we could not help but be suspicious both of the corporate virtue signaling that was occurring and of the “virtue” that was being demanded on the part of varying parties. Immediate demands of targeted systemic change in matters of nutritional food availability, access to health care, “criminal” prosecution standards, credit ratings, real-estate pricing, the housing crisis, and K–12 resource allocation were often met with public apologies, name changes of public buildings, or the taking down of historical monuments. But was this the best outcome from the windfall of such social capital? How does one demand for the repair for 400 years of compounding wealth disparity? None of the capitulations that occurred made for straightforward economic or social policy. And those who agree on the fundamental reality of systemic disadvantages can disagree on economic, policy, and strategic particulars. As fellow historians, therefore, we as editors thought a productive contribution to the complexity of this assemblage of issues would be to place “corporate responses to racial unrest” in the broadest historical and cultural context. What follows is the fruits of over three years of hard work and patience by the contributors.

Keith Hollingsworth’s “The 1906 Atlanta Race Riot Aftermath: CSR in Action and Woke-Washing,” places the 1906 Atlanta Race Riot and the reaction of the Atlanta business community into a contemporary context, examining ideas of corporate social responsibility (CSR) and woke-washing in the aftermath of violent racial upheaval. Were Atlanta’s business elite really concerned with social uplift and the improvement of racial relations, or did businesses simply have the protection of their economic future at the forefront? Hollingsworth masterfully utilizes this 1906 case study to understand the motives of contemporary corporations in the aftermath of the 2022 social justice uprisings.

Mattie Webb’s “‘An Exercise in the Art of the Possible’: Waging a Battle against Apartheid in the South African Workplace” examines how South African and U.S. labor and workplace reforms intersected during the late 1970s by incorporating the Sullivan principles into the broader scholarship on the South African trade union movement and the late apartheid era Wiehahn Commission reforms. Webb utilizes these principles in order to examine how corporate reforms landed in South Africa and to assess corporate responses to worker demands. This article argues that South African workers were not merely passive recipients of workplace reform, but rather active participants, shaping the form and direction of U.S. and South African policy.

Sethulego Matebesi in “Evolution of Mining Company Responses to Civil Society Mobilization in South Africa” examines the historical evolution of the corporate responses of mining companies to reduce conflict with local communities, specifically the extractive industry’s response to protests and mobilizations against its operations in South Africa. Arguing that mining companies have embraced the overarching understanding that they need to be socially responsible and contribute actively to sustainable development beyond legal requirements due to continued pressure from civil society. Matebesi argues that the global shift to the central role of local communities in mining should be accompanied by corporate strategies aimed at building resilient and sustainable partnerships between mining companies, communities, and the government.

What follows is neither a first nor a final word on the subject of corporate responses to racial unrest. We do wish to stake a claim, however, that by this unprecedented special section within the history of Enterprise and Society, a particular field of inquiry has been initiated: in the broad sense, corporate responses to racial unrest and, more narrowly, corporate responses to racial unrest as a legal matter of corporate practice within the better judgment rule. Though jurisdictions introduce complications of comparison, what follows could be brought forward into matters of comparative law—not least in matters of ESG and the like. The hopes of the editors and of the leadership of this journal are that the articles that follow will be taken as a bold new research agenda along such lines.