Earlier this year, I wrote about a white employee in Colorado who claimed his former employer subjected him to a hostile work environment by requiring him to attend anti-harassment training.
According to the plaintiff, this training included "sweeping negative generalizations regarding individuals who are white, and other gross generalizations about members of other racial demographics" with training materials that "were based upon a glossary of terms stating that all whites are racist, that white individuals created the concept of race in order to justify the oppression of people of color, and that `whiteness' and `white supremacy' affect all `people of color within a U.S. context.'"
The defendant moved to dismiss the plaintiff's complaint on the basis that it had not subjected the plaintiff to behavior based on race that was either severe or pervasive enough to affect the terms and conditions of his employment.
So, the plaintiff appealed to the Tenth Circuit Court of Appeals, which affirmed the lower court's decision in a unanimous decision. It reasoned that the plaintiff did not "allege that the training occurred more than once—let alone an ongoing presence permeating the workplace" or "any race-based harassing conduct, ridicule, or insult from either his co-workers or his supervisors within his workplace that occurred as a result of the training."
The Tenth Circuit further noted that any allegations of "explicitly race-based implications of the training [that] could eventually compromise employment opportunities, workplace cohesion, and [workplace] security" were too speculative to be actionable.
But although the plaintiff here had no viable Title VII claim against the defendant arising from having to attend DEI training, the Tenth Circuit attempted to establish some guardrails for DEI training:
"As other courts have recognized, race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment. The rhetoric of these programs sets the stage for actionable misconduct by organizations that employ them."
The Tenth Circuit explicitly adopted the reasoning from an opinion Judge Beetlestone issued earlier this year when she stressed that merely discussing "the influence of racism on our society does not necessarily violate federal law."
But "the way these conversations are carried out in the workplace matters," noted Judge Beetlestone.
"When employers talk about race—any race—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law."
DEI training can jumpstart further dialogue about creating a positive working environment. But when it manifests in severe or pervasive harassment of employees based on race (or any other protected class), a Title VII claim or lawsuit may follow.
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