EEO Compliance Dispatch

The U.S. Court of Appeals for the Second Circuit recently ruled that mandatory anti-bias training can support a claim for a racially hostile work environment if it repeatedly portrays a specific race in negative or stereotypical terms.

This case involved Leslie Chislett, a former executive director at the New York City Department of Education. She alleged that, during mandatory implicit bias training, instructors described “white culture” as “supremacist,” “toxic,” and “privileged.” At one point, Chislett was told her focus on “excellence” reflected “white supremacy.”

Ms. Chislett alleged that the training violated Section 1983, which protects public employees from unlawful discrimination, including hostile work environments. To establish a hostile work environment claim under Section 1983, a plaintiff must show conduct that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

A federal judge in New York granted summary judgment to the employer, and Ms. Chislett appealed. The Second Circuit found that the hostile work environment claim should not have been dismissed because a jury could fine that racist comments were expressed during the anti-bias training, including the statement that Ms. Chislett’s interest in pursuing excellence was a form of “white supremacy.” In addition, Ms. Chislett presented evidence that staff members were segregated by race during the training sessions.

Bad news for DEI?

A number of organizations are targeting Diversity, Equity, and Inclusion programs, and the U.S. Equal Employment Opportunity Commission has advised that stereotyping employees based on race or sex may create liability for employers.

The Second Circuit decision also follows two recent Supreme Court rulings that have broadened the scope of workplace discrimination protections. In Ames v. Ohio Department of Youth Services, a case involving a plaintiff who claimed that she was discriminated against because she was heterosexual, the Court reinforced the principle that anti-bias laws apply to all employees, regardless of race or sex (including sexual orientation). In Muldrow v. St. Louis, the Court held that employees need show only “some harm” from workplace decisions to pursue discrimination claims. These decisions arguably make it easier for employees to bring claims connected to DEI efforts and anti-bias training.

Even so, the legal standards for such claims remain demanding. To succeed, employees must show that the harassment was “severe or pervasive.” Courts have generally dismissed claims based on a single training session or limited comments. Rather, evidence of repeated stereotyping or discriminatory treatment is required.

The Second Circuit ruling highlights the importance of carefully designing and monitoring DEI programs as well as all EEO and anti-discrimination training. Employers and trainers should not use stereotypes based on race or sex – even if the race is “white” and the sex is “male.” It is also important to note that the content of the training and its delivery are also critically important.

Neutral, balanced approaches that focus on inclusion without assigning blame to or singling out members of any one group are less likely to face legal challenges.

What should employers do?

It is important to note that the Second Circuit, like other courts, did not find that implicit bias, anti-bias, or other DEI trainings are unlawful per se. Moreover, employers should continue to conduct anti-discrimination and harassment training. Broader equity-based training sessions designed to increase awareness and to create an inclusive and cohesive workplace also remain important in today’s workplaces. On the other hand, employers should avoid any training that disparages members of particular protected groups, and they should avoid what used to be called “reverse” discrimination.