Employers have recently prevailed in several cases across the country in which employees have attacked diversity training and other workplace initiatives related to diversity, equity, and inclusion (DEI), indicating that many courts don’t consider these trainings to be violations of federal antidiscrimination laws.
Antidiscrimination Training Doesn’t Create Hostile Workplace
Many of the lawsuits arose after employers responded to the racial events of 2020 in various ways, including by conducting trainings on concepts like systemic racism and implicit bias. Courts have consistently ruled in employers’ favor, finding that the employees failed to prove the trainings met the threshold to establish a hostile work environment claim.
The decisions serve as a reminder that you should continue to evaluate your DEI programs, including employee trainings, to ensure they’re aligned with current legal standards. In light of these rulings, courts may be less likely to rule in favor of employees alleging violations of Title VII of the Civil Rights Act of 1964 in the context of DEI training.
Federal Attention Turned to Diversity and Antibias Training
Because the federal government has recently given greater attention to employers’ DEI efforts, employers may be evaluating the risks related to diversity and antibias training.
On March 19, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance documents stating that diversity training may create a hostile work environment and, accordingly, might violate Title VII. However, employers have prevailed in recent court decisions in which employees have attacked diversity training and similar workplace discussions.
In 2020, diversity training was also the subject of Executive Order No. 13950, which sought to ban federal contractors from conducting diversity training related to what it called “divisive concepts.” Later that year, the U.S. District Court for the Northern District of California thwarted the effort in Santa Cruz Lesbian and Gay Community Center v. Trump, finding that the ban violated the First Amendment’s speech protections.
Similarly, courts have pushed back on blanket positions that diversity training violates the law. Rather, in many cases, courts considering disputes related to diversity training have determined that such training doesn’t rise to the level of actionable harassment in violation of federal antidiscrimination laws.
Antiracism at Penn State Didn’t Create Hostile Work Environment
In a 2023 complaint filed in the U.S. District Court for the Eastern District of Pennsylvania, white former university professor Zack De Piero claimed his former employer, Pennsylvania State University, violated Title VII, the Pennsylvania Human Relations Act, and Title 42 of the U.S. Code, Section 1981. There were several events underlying his claims, such as a campuswide Zoom conversation about the shooting of George Floyd, an email regarding the university’s commemoration of Juneteenth, and an email invitation to a professional development meeting centered on racism in writing assessments and antiracist approaches to teaching and learning.
During the campus conversation about the Floyd shooting, Penn State delivered a presentation about racial justice and raising awareness about the shooting. De Piero argued that the presentation exemplified the university’s “race-essentialist stereotypes.” Two weeks after the conversation, the school emailed the campus LISTSERV about the origins of Juneteenth and ways to support racial justice. De Piero complained that the university’s commemoration of Juneteenth singled him out because of his race and insinuated that “white supremacy was or is a reality” at Penn State.
Also, during a meeting about professional development, the university invited a racial justice scholar to discuss racism in writing assessments. De Piero alleged that he was deeply offended by the author’s scholarship and claimed that the discourse “enforce[d] a raft of other stereotypes” about white people. He argued that these events, among others over the course of three-and-a-half years, created a racially hostile work environment.
The court dismissed De Piero’s claims on summary judgment (without a trial) and found that, as a matter of law, the allegations didn’t establish a hostile work environment claim.
De Piero alleged that the actions met the severe-and-pervasive standard and therefore merited a trial on that basis. Rejecting this claim, the court analyzed the legal tests and facts, holding that “no reasonable jury could determine that the twelve incidents at issue here constitute ‘a constant drumbeat of essentialist, deterministic, and negative language’ that warrants his hostile work environment claims to go to trial.”
The court granted summary judgment in Penn State’s favor on De Piero’s remaining retaliation claims.
10th Finds Diversity Training Didn’t Violate Title VII
In another case, the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by Joshua Young, a white former employee of the Colorado Department of Corrections who alleged the state agency’s mandatory DEI training violated his rights under Title VII and the equal protection clause by subjecting him to a hostile work environment based on his race.
In Young v. Colorado Department of Corrections, the 10th Circuit said Young alleged that “the training demeaned him because of his race and promoted divisive racial and political theories that would harm his interaction with other corrections personnel and inmates.” According to Young, the training involved discussions of white fragility, intersectionality, and equity, among other topics he found objectionable.
The U.S. District Court for the District of Colorado dismissed the case, and the 10th Circuit affirmed the dismissal. It found that the training wasn’t sufficiently severe and pervasive to create a hostile work environment under Title VII. It also affirmed the dismissal of his equal protection claim on the basis that he lacked standing, given he was no longer employed by the agency.
The 10th Circuit panel observed that “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 training Young received didn’t meet that standard, however, because it occurred once, didn’t create an “ongoing presence permeating the workplace,” and didn’t trigger race-based harassing conduct or comments. His concerns about the potential long-term implications of the training on hiring, security, or other workplace conditions were too speculative to be actionable.
Seattle’s Trainings Didn’t Subject White Employee to Harassment
Similarly, the U.S. District Court for the Western District of Washington ruled in favor of Seattle in Diemert v. City of Seattle after a white former employee argued that the city’s DEI initiatives created a hostile work environment by “infusing race into all City functions” and “reduc[ing] [him] to an embodiment of his race” in violation of Title VII and the Washington Law Against Discrimination. He also alleged that the city discriminated and retaliated against him when he complained of the alleged harassment.
Between 2015 and 2019, Joshua Diemert attended three required DEI classes that involved presentations and discussions about race. After the trainings, he alleged that he was subjected to racially pejorative comments on numerous occasions and argued that the city’s initiative laid the foundation for the racial harassment.
In granting summary judgment to the city on Diemert’s hostile work environment claim, the court explained that the antidiscrimination trainings weren’t, per se, unlawful and that Diemert failed to factually demonstrate that the trainings personally harassed him on account of his race.
The Washington federal court, quoting the Pennsylvania federal court in De Piero, explained its reasoning:
Exposure to material that discusses race does not by itself create an unlawful hostile-work environment. “Training on concepts such as ‘white privilege,’ ‘white fragility,’ implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment.’”
Regarding the discrimination and retaliation claims, the court granted summary judgment in favor of the city because Diemert failed to show a question of fact about whether the city took an adverse employment action against him.
Employee’s Objection to Training Wasn’t Reasonable
Likewise, in Vavra v. Honeywell International Inc., the U.S. District Court for the Northern District of Illinois granted summary judgment to Honeywell in 2023 after Charles Vavra alleged that he was fired for complaining about an implicit bias training. He argued that his employer retaliated against him by terminating his employment after he opposed the training based on his belief that it was inherently racist toward white people. The court explained that his belief that the training was discriminatory wasn’t objectively reasonable and couldn’t be considered a protected activity.
According to the court, quoting prior precedent, “the [employee] must not only have a subjective (sincere, good faith) belief that he opposed an unlawful practice; his belief must also be objectively reasonable, which means that the complaint must involve discrimination that is prohibited by Title VII.”
In this case, the employee failed to demonstrate that the training itself was racially discriminatory or motivated by racial animus. The court also explained that no causal connection existed between the employee’s discrimination complaint and the employer’s decision to terminate his employment.
Takeaways
You should take the following steps to reduce your risks:
Review training materials. If you’re conducting diversity training, you should consider reviewing the training materials to ensure they comply with the current legal principles, as employers often reuse trainings or vendors year-over-year without considering whether the materials include the most recent state of the law.
Moreover, because you may have changed your areas of focus related to overall business principles or workplace culture, you should critically examine and assess materials to ensure they not only are consistent with legal requirements but also highlight critical organizational values.
Reduce the focus on numbers. You should ensure training materials lean toward inclusivity and strengthening workplace culture among employees instead of focusing on targets, quotas, or goals related to hiring and promotion.
Many trainings take a numerical approach to diversity and inclusion. Depending on the culture, some managers may misinterpret statistics and be tempted to make employment-related decisions to address a perceived imbalance in the numbers. It’s important for trainings to highlight broad strategies that focus on reducing barriers and bias rather than raw numbers and statistics.
Ensure strong harassment policies. You should reinforce policies against harassment, bullying, and retaliation to help prevent antagonism among employees and to assist in maintaining a professional work environment.
While courts have sided with employers on a wide range of training topics, you should ensure employees are free to constructively voice their views related to any training. Fostering a culture of mutual respect and ensuring internal practices and policies serve all employees will assist in thwarting future claims.
Review training requirements. Although courts haven’t held that an employer has violated Title VII by requiring reasonable and respectful training on inclusion topics, you should continue to review your policies and be cautious about tying diversity training to performance evaluations or other employment decisions.
In states like California, New York, and Illinois, which require trainings on legal standards like sexual harassment, you might consider leveraging required trainings to incorporate organizational values like respect, fairness, and belonging.
Monitor legal developments. You should monitor the changing legal landscape in the context of antibias training and other DEI-related initiatives because some cases are at the federal district court level, and not all circuit courts have weighed in on the legal principles.
Moreover, the current DEI landscape may spur novel claims that could appear attractive to judges. Because the training landscape isn’t settled, you should ensure you’re up to date in the relevant areas.
Conclusion
As direct attacks on DEI have risen, it has been up to the courts to determine the appropriate confines of Title VII and other laws. Often, these decisions run counter to blanket statements that all efforts to foster inclusion in the workplace violate the law. Recent decisions regarding the challenges to diversity training highlight the complex landscape that employers face and bring to light how you should be vigilant and precise in recognizing the legal guardrails in your inclusion efforts.
Christopher Wilkinson, Emily Edwards, and Kaneem Antar Thornton are attorneys with Perkins Coie LLP and can be reached at cwilkinson@perkinscoie.com, eedwards@perkinscoie.com, and kaneemthornton@perkinscoie.com.