This isn't hypothetical. This is actually happening.
While not a the 'major' factor, it was a factor in reducing the size of the company and specializing rather than growing it and working on more generic product lines. by reducing the size of the company they were able to reduce the need to hire and plan for being sued at least once a year by someone in a protected class that decided that they had been discriminated against.
Based on conversations with him and others in similar positions this is not uncommon.
The solution is to make them also think that people in these classes are equally likely to sue if not hired, and particularly likely to win if the employer is, in fact, discriminating against them in hiring.
I seems like it is much easier to prove discrimination existed when firing vs. discrimination when hiring.
I think that instead of being focused on enforcement and punishments, we should be focused on eliminating discrimination by changing perceptions.
I don't think those are mutually exclusive.
I really don't see how you think that's the problem.
PS: The UNNAMED employer was really vilified here. Damn them!