Following the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, there has been in increase in litigation challenging employers’ Diversity, Equity, and Inclusion policies and practices. In one recent example, however, a conversative panel of judges in the Tenth Circuit Court of Appeals rejected an argument that a mandatory diversity training constituted unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment of the U.S. Constitution.
In Young v. Colorado Department of Corrections, a white man and former Colorado Department of Corrections employee filed suit claiming that his employer had created a racially hostile environment through the implementation of mandatory diversity training. Mr. Young alleged that the trainings made sweeping negative generalizations regarding individuals who are white, and other gross generalizations about members of other racial demographics. Among other things, Mr. Young took offense to a glossary of terms that defined concepts such as “BIPOC,” “White Fragility,” “Race,” and “White Exceptionalism,” in a way that he claimed promotes racist principles.
While partially sympathetic to Mr. Young’s assertions, the three-judge panel of the Court of Appeals unanimously affirmed the lower court’s dismissal of the case because Mr. Young did not plead sufficient facts for a hostile work environment claim. The court acknowledged that while Mr. Young may have found the training materials to be personally offensive, and potentially on their way to being problematic, the clear legal standard is that the training materials must have (1) created an abusive or hostile working environment and (2) been so severe or pervasive as to both objectively and subjectively alter the terms of his employment. Crucially, Mr. Young did not meet this standard.
Hostile Working Environment: Title VII is typically violated when a workplace is rife with “discriminatory intimidation, ridicule, and insult.”[1] A single event, if extraordinarily severe, can alter the conditions of a working environment and rise to a hostile level. The hostile environment must be of such a character that it would be deemed hostile by a reasonable employee under the same or similar circumstances.
Severe or Pervasive: Whether conduct is severe or pervasive is frequently analyzed based on the frequency and severity of the discriminatory conduct, whether the conduct is physically threatening or humiliating or merely offensive, and whether the conduct unreasonably interferes with an employee’s work performance.
Mr. Young first alleged that the mandatory trainings created a racially hostile environment based on the training’s race-based content. Second, Mr. Young claimed that knowing that his colleagues were being instructed in the same manner with the same trainings exacerbated the hostile work environment. Third, Mr. Young claimed that the Corrections Department’s decision to not investigate his formal complaint about the trainings also amounted to harassment.
Importantly, Mr. Young failed to connect the personal offense he felt from the trainings to any harassing conduct he believed he experienced in the workplace. Though Mr. Young resigned and cited the trainings as his reason, he did not plead supporting facts, like, for example, any negative, retaliatory, or harassing interactions with supervisors or co-workers that occurred as a result of the training. Without any examples to support his claims, Mr. Young’s concerns about the impact of the training were speculative at best.
Mr. Young’s case highlights an increasingly common overreach by plaintiffs who claim reverse discrimination for being required to participate in workplace diversity, equity, and inclusion-type trainings. However, as this opinion makes clear, merely having to participate is insufficient to qualify as a hostile work environment claim under Title VII.
While this area of the law is guaranteed to see more activity, employers should understand that efforts to create and foster inclusive and diverse workplaces, and to identify and prevent discriminatory practices, continue to be legal and encouraged. The opinion did identify certain potentially problematic elements of this particular workplace training, and conscientious employers can take note and ensure that their own training programs do not contain those same objectionable elements.
For questions about your specific workplace’s diversity, equity, and inclusion trainings, or any other issues related to diversity, equity, and inclusion in the workplace, contact Erik Eisenmann, Marina Fleming, or your HB attorney.
[1] Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).