Tuesday, March 19, 2024

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

In fact, the court offered a stern warning to any employer pushing DEI in their workplace: 

"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 court then added (in a footnote … always pay attention to the footnotes):

"When employers talk about race—any race—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law."

While I agree with the court's ultimate conclusion that the attendance at DEI training did not create a hostile work environment, I'm highly concerned by its rationale and tone. What happens when the next case stretches these facts? Will the next court continue to uphold the right of employers to conduct DEI training? Or the court after that?

DEI won't die because of the decision of one court in one case. It will die from the decisions of thousands of courts across thousands of cases over time. Not death from one giant gash, but from a thousand paper cuts. And what a shame that will be for everyone.