A Look At Employer Wins In Title VII Suits Over DEI Training

Employers have recently prevailed in several cases across the country in which plaintiffs have attacked diversity training and other workplace initiatives related to diversity, equity and inclusion, indicating that many courts do not consider these trainings to be violations of federal antidiscrimination laws.

Many of the lawsuits arose after employers responded to the racial events of 2020 in various ways, including by conducting trainings on concepts such as systemic racism and implicit bias.

Courts have consistently ruled in employers' favor, finding that the plaintiffs failed to prove that the trainings met the threshold to establish a hostile work environment claim.

The decisions serve as a reminder that employers should continue to evaluate their DEI programs, including employee trainings, to ensure that they are aligned with current legal standards.

In light of these rulings, courts may be less likely to rule in favor of plaintiffs alleging Title VII violations in the context of DEI training.

Since the federal government has recently given greater attention to employers' DEI efforts, employers may be evaluating the risks related to diversity and anti-bias training.

On March 19, the U.S. Equal Employment Opportunity Commission 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 plaintiffs 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 "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.[1]

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 does not rise to the level of actionable harassment in violation of federal antidiscrimination laws.

In a 2023 complaint filed in the U.S. District Court for the Eastern District of Pennsylvania, a white former university professor claimed that his former employer, a state university, violated Title VII, the Pennsylvania Human Relations Act and Title 42 of the U.S. Code, Section 1981, in De Piero v. Pennsylvania State University.[2]

There were several events underlying Zack De Piero's 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 "PSU'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.

Further, 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.

De Piero argued that these events, among others over the course of three and a half years, created a racially hostile work environment.

In March, the court dismissed the claims on summary judgment and found that, as a matter of law, the allegations did not 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."

In April, the court granted summary judgment in Penn State's favor on De Piero's remaining retaliation claims.[3]

In another case last year, the U.S. Court of Appeals for the Tenth Circuit affirmed the dismissal of a lawsuit brought by Joshua Young, a white former employee of the Colorado Department of Corrections who alleged that 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.[4]

In Young v. Colorado Department of Corrections, the Tenth Circuit said that 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 Tenth Circuit affirmed the dismissal upon Young's appeal. In so holding, the Tenth Circuit found that the training was not sufficiently severe and pervasive to create a hostile work environment under Title VII.

The Tenth Circuit affirmed the dismissal of Young's equal protection claim on the basis that he lacked standing, given that he was no longer employed by the agency.

The Tenth Circuit panel also 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." However, the training he received did not meet that standard because it occurred once, did not create an "ongoing presence permeating the workplace," and did not trigger race-based harassing conduct or comments.

Young's concerns about the potential long-term implications of the training on hiring, security or other workplace conditions were too speculative to be actionable.

Similarly, in February, 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.[5]

Joshua Diemert also alleged that the city discriminated and retaliated against him when he complained of the alleged harassment.

Between 2015 and 2019, 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 were not 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 that "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 as to whether the city took an adverse employment action against him.

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.[6]

Vavra 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 Vavra's belief that the training was discriminatory was not objectively reasonable, and thus could not be considered a protected activity.

According to the court, quoting prior precedent, "'[t]he plaintiff 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.'"[7]

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 complaint of discrimination and the employer's decision to terminate his employment.[8]

Takeaways

Employers should take the following steps to reduce their risks.

Review training materials.

Employers that are conducting diversity training should consider reviewing the training materials to ensure that 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 employers may have changed their areas of focus related to overall business principles or workplace culture, they should critically examine and assess materials to ensure that they are not only consistent with legal requirements, but also highlight critical organizational values.

Reduce the focus on numbers.

Employers should ensure that training materials lean toward inclusivity and strengthening workplace culture among employees instead of focusing on targets, quotas or goals that are 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 is important for trainings to highlight broad strategies that focus on reducing barriers and bias rather than raw numbers and statistics.

Ensure strong harassment policies.

Companies 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, employers should ensure that employees are free to constructively voice their views related to any training.

Fostering a culture of mutual respect and ensuring that internal practices and policies serve all employees will assist in thwarting future claims.

Review training requirements.

Although courts have not held that an employer has violated Title VII by requiring reasonable and respectful training on inclusion topics, employers should continue to review their policies and be cautious about tying diversity training to performance evaluations or other employment decisions.

In states such as California, New York and Illinois, which require trainings on legal standards like sexual harassment, employers might consider leveraging required trainings to incorporate organizational values such as respect, fairness and belonging.

Monitor legal developments.

Companies should monitor the changing legal landscape in the context of anti-bias training and other DEI-related initiatives, as some cases are at the federal district court level and courts in all circuits have not weighed in on the legal principles.

Moreover, the current DEI landscape may spur novel claims that could appear attractive to judges. As the training landscape is not settled, employers should ensure that they are 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 employers should be vigilant and precise in recognizing the legal guardrails in their inclusion efforts.