At Apple’s recent annual meeting, CEO Tim Cook said in response to a question about Apple’s DEI initiatives: “We’ve never had quotas or targets for Apple. Our strength has always come from hiring the very best people ….”

He might have been in error.

Apple’s “Inclusion & Diversity” page starts by proclaiming: “We’re … increasing representation across teams, and holding ourselves accountable at every level.”

To be clear that Apple is referring to representation based on race and sex, tables are set forth dividing Apple’s workforce into “Gender” (though only “Male” and “Female” numbers are provided) and “Race and Ethnicity,” which is broken into Asian, Black, Hispanic/Latinx, Indigenous, Multiracial and White.

This raises the question: How does a company increase representation of one race without discriminating against other races? As Judge James Ho, concurring in the 5th Circuit case of Price v. Valvoline, noted: “Favoring one race necessarily means disfavoring those of another race.” In fact, Harmeet Dhillon, an American lawyer and Republican Party official, recently told senators that “Target Corp. may have acted illegally in pledging to increase the representation of Black employees across its workforce.”

Apple clarifies that this discrimination will occur not only in entry-level hiring but also in leadership positions by proclaiming: “Over the past year, we filled more open leadership roles than ever with women globally and Black candidates in the United States. We remain committed to continuing to grow leadership representation.”

Numbers are provided only for women, Black, Hispanic/Latinx and URCs. (Apple explains that “Underrepresented communities (URCs)” are “groups whose representation in tech has been historically low — Female, Black, Hispanic/Latinx, Multiracial, and Indigenous peoples.”)

The absence of Asians and Whites is arguably telling and informative about what Apple considers “diversity” and “inclusion.”

As reported by America First Legal, “Apple’s Vice President of Core OS — Software Engineering, Jon Andrews, candidly discussed Apple’s discriminatory hiring practices … during two separate ‘all-hands’ meetings in the past year. Andrews said, in part: ‘We’ve made some changes to the way we do manager hiring. … There’s two questions at the top of an offer when it goes to approval. One is that a female was interviewed and that a URE (underrepresented employee) was interviewed. And … for management positions, I have said that I won’t approve an offer unless there’s a yes next to one of those.’ ”

One would be forgiven for concluding that Apple does have targets — specifically, to increase representations of groups deemed “diverse” based on race and sex. In fact, the third item appears to convey nothing short of a formal quota in applications. One can hire based on merit — “hiring the very best people,” as Cook puts it — or one can hire based on something else. By focusing on race and sex outcomes in hiring and promotion, Apple seems to be focusing on something else.

To the extent one concludes that Cook misrepresented Apple’s DEI initiatives at the annual meeting, one next should ask whether this was a knowing or ignorant misrepresentation — though neither would be a good sign for Apple and its shareholders.

If Cook knew or should have known that Apple has race and sex representation targets, and does, in fact, hire and promote on that basis instead of hiring and promoting “the very best people,” then Cook arguably has the requisite mental state to support a securities fraud claim should some subsequent stock price drop be reasonably connected to a failure to fully disclose the risks associated with discriminating based on sex and race in hiring and promotion.

Such a stock price drop could result in Apple becoming a Justice Department target for illegal DEI. One could also craft a state law bad-faith claim, alleging a willful violation of the laws against race and sex discrimination. On the other hand, if Cook is ignorant of the race and sex discrimination apparently occurring at Apple in the name of DEI, then he’s potentially breaching his duty to be fully informed.

Of course, one can have Clintonian discussions about the meaning of “quotas,” “targets,” and “the very best people,” — but we are in the midst of a “common sense revolution,” and common sense should tell you that dividing job applicants and employees on race and sex to meet goals of increased representation is still race and sex discrimination, bringing with it all the usual legal, reputational and performance risks we associate with such discrimination.

Imagine if all the resources corporate America has devoted to dividing us on race and sex in the name of DEI had been directed toward charitable and bottom-line-enhancing initiatives geared toward raising the floor for all Americans on a colorblind basis, and reducing inequalities, whether that be in the areas of health, wealth, education or job opportunities. It is hoped our common sense revolution will move corporations to unite us rather than divide us.

Stefan Padfield is executive director of the National Center’s Free Enterprise Project. He wrote this for InsideSources.com.