Appellate ruling provides roadmap for bias suits over DEI training
"I think there's going to be a huge number of reverse discrimination type cases filed this year and in subsequent years," said employment lawyer Jason Schwartz.
The U.S. Court of Appeals for the Tenth Circuit issued one of the first appellate rulings last week addressing claims that diversity training created a hostile work environment—and employment lawyers say the opinion provides a roadmap for a flood of expected similar claims.
Also last week, the Fourth Circuit upheld a multimillion-dollar award for a white former Novant Health executive who claimed he was fired so the company could advance diversity goals.
“The floodgates on these cases are just opening up,” said Jason Schwartz, a Gibson, Dunn & Crutcher partner. “I think there’s going to be a huge number of reverse discrimination type cases filed this year and in subsequent years, and these two cases are the tip of the iceberg for that.”
‘Troubling on Many Levels’
In the March 11 decision, the Tenth Circuit panel upheld the dismissal of a Title VII lawsuit brought by former Colorado prison worker Joshua Young, who alleged that a mandatory diversity, equity and inclusion training included “sweeping negative generalizations regarding individuals who are white” and created a hostile environment.
Though they ultimately tossed the complaint, the judges described the training materials as “troubling on many levels.”
For example, Young took issue with a glossary in the training that included terms like “white fragility” and “white exceptionalism,” as well as reading suggestions such as “How to Be an Antiracist” by Ibram X. Kendi. He said he was offended by race-based statements in the materials and forced to resign.
“If not already at the destination, this type of race-based rhetoric is well on the way to arriving at objectively and subjectively harassing messaging,” Judge Timothy Tymkovich wrote.
“Taken seriously by managers and co-workers, the messaging could promote racial discrimination and stereotypes within the workplace,” added Tymkovich, joined by Judge Joel Carson. “It could encourage racial preferences in hiring, firing, and promotion decisions. Moreover, employees who object to these types of messages risk being individually targeted for discriminatory treatment—especially if employers explicitly or implicitly reward discriminatory outcomes.”
But because Young failed to show there was “severe or pervasive” harassment, the panel concluded he could not sue.
Still, Jasmine Anderson, a Fox Rothschild partner, said the Tenth Circuit put forward “a bit of a litmus test” for how DEI training could be found unlawful.
The panel noted that Young didn’t allege the training occurred multiple times or that he faced race-based insults afterwards.
“It is very possible that had [Young] been able to demonstrate the DEI training had created a reasonably objective hostile work environment (such as alleging that he had to participate in the training more than once, or that his co-workers were hostile towards him as a result of the training), his case would not have been dismissed,” said Anderson, regional practice lead of Fox Rothschild’s labor and employment department in San Francisco.
In a concurrence, Judge Scott Matheson Jr. said he agreed with the decision, but that his Tenth Circuit colleagues didn’t need to comment on the DEI training here or “the potential for future legal challenges to it or other [DEI] programs.”
Schwartz said it’s notable the judges commented on the content of the Colorado DEI training and what might constitute “pervasive” or “severe” harassment.
“It’s almost like the message from the court is, ‘see you next time,’” he said. “So I think we certainly haven’t seen the end and I would say we’re just seeing the beginning of those kinds of cases where employees are coming to court saying that an aggressive DEI training program is creating a hostile work environment for them.”
Wave of Cases
There has been a wave of cases challenging corporate diversity programs by alleging reverse discrimination following the U.S. Supreme Court’s decision last June striking down affirmative action in college admissions as violating the 14th Amendment’s equal protection clause.
There are several similar cases pending in district courts.
Related: DEI initiatives are essential, not just the right thing to do
The conservative Pacific Legal Foundation is representing a former Seattle city worker who claims he had to take part in diversity initiatives that centered on critical race theory and encouraged participation in race-based affinity groups. In his complaint, the worker claims he became the “office pariah” and his colleagues called him a white supremacist when he objected to the training.
A district court judge declined to dismiss the case last year.
Anderson said there will likely be an uptick in cases challenging the lawfulness of DEI training, with more appellate courts weighing in down the line.
Kevin Owen, a partner at Gilbert Employment Law which represents employees, said the training material and glossary terms cited in Young’s complaint are not the norm in all DEI workshops.
“The glossary of terms here is not something I would have used. Usually you want to make these sorts of trainings to be far more race neutral and talking about the concepts of how to promote inclusivity,” Owen said. “This seems to be a situation in which Colorado utilized DEI training that was an unfortunate outlier. … And so, I would be cautious in assuming that any DEI training automatically leads to a finding of racial animus.”
Anderson said the takeaway for employers should be to vet DEI materials continually.
“While I encourage employers not to give up on DEI initiatives, it is important that employers have their DEI programs reviewed by knowledgeable counsel for compliance and other issues,” Anderson said.
The case before the Tenth Circuit was Young v. Colorado Department of Corrections, No. 23-1063.