Implicit Bias Training Ruling Gives Anti-DEI Plaintiffs Foothold

An appeals court decision scrutinizing anti-bias training that risks fueling race-based hostile work environment claims offers new leverage to bolster allegations from workers challenging diversity initiatives on similar grounds.

The US Court of Appeals for the Second Circuit last week held that mandatory implicit bias training isn’t inherently illegal, but can give rise to a race-based hostile work environment claim under Section 1983 if the training discusses a particular race “with a constant drumbeat of essentialist, deterministic, and negative language.” That section of the civil rights statute lets individuals sue state and local officials for civil rights violations.

Conservative activist groups have already sued over workplace DEI. The Second Circuit’s reasoning gives them legal footing going forward, and aligns with a recent question-and-answer document from the Equal Employment Opportunity Commission, by establishing a legal benchmark they are likely to invoke as part of DEI-related enforcement priorities under Title VII of the 1964 Civil Rights Act, attorneys said.

Lower courts, legal scholars, and the EEOC have recognized that efforts to promote workplace diversity, equity, and inclusion—such as helping workers identify and understand their own unconscious biases—might create liability if they’re implemented in a way that stereotypes a racial group, but there’s a scarcity of case law on whether diversity efforts can create a hostile work environment.

The ruling is “lockstep with what the EEOC’s approach seems to be in this current environment and with this administration,” said Joseph Seiner, a law professor at the University of South Carolina and a former appellate attorney at the commission. “It absolutely gives a one-two-punch to this type of theory now that you have it recognized by a well-respected federal appellate court, as well as the government agency.”

Though cases are fact-specific, the opinion offers “persuasive authority for Title VII cases” with similar claims, said Amy Epstein Gluck, chair of Pierson Ferdinand LLP’s employment, labor, and benefits practice.

The EEOC didn’t immediately respond to a request for comment.

Evolving Landscape

The ruling comes as courts reevaluate legal standards for determining which workplace actions constitute “discrimination” in the context of DEI initiatives, the parties’ burden of proof in such cases, and the limits of lawful diversity initiatives under Title VII.

The US Supreme Court unanimously held in its June Ames v. Ohio Department of Youth Services decision that federal anti-bias protections apply equally to all workers regardless of race, gender, and other protected characteristics. The case concerned whether members of a majority group like White employees must face a higher evidentiary burden when proving a bias claim.

White plaintiffs have since cited Ames to bolster their cases, along with the high court’s 2024 Muldrow v. St. Louis decision, which some argue made it easier to prove DEI discrimination by only showing that they experienced “some harm” from an unfavorable workplace decision.

In the Sept. 25 decision, the Second Circuit partially vacated a summary judgment order against a White former executive director for a New York City Department of Education program because a “reasonable jury” could find the agency’s implicit bias training was racially hostile. However, it upheld the lower court’s rejection of Leslie Chislett’s demotion and constructive discharge claims for lack of evidence.

Instructors and facilitators of the training repeatedly described “white culture” as “supremacist,” “toxic,” or “privileged,” the opinion said. Chislett was personally told that her “interest in excellence” reflected “white supremacy,” and management failed to intervene, even after incidents with subordinates were also reported, it found.

The case may provide fodder for the EEOC to use as an example of how terms like “white privilege” infiltrate mandatory anti-bias trainings, said Michael Foreman, an employment discrimination law professor at Penn State Law.

“This case will help them on their bully pulpit to say, ‘Hey, look, DEI has gone wild, and look what this court said. Here’s an example of why we need to go after these DEI programs,” he said.

High Bar

Still, workers challenging DEI efforts as discriminatory must meet demanding—and evolving—legal standards to prevail. Proving that race played a role in an adverse employment action is where the rubber meets the road, and such cases have yielded mixed results so far.

The Seventh Circuit ruled last year in a White engineer’s case against Honeywell International Inc. that his mere objection to participating in mandatory DEI training on the belief that it contains discriminatory content wasn’t enough to show he was discriminated and retaliated against.

Claims alleging that diversity programs create a racially hostile work environment must meet a high threshold to show any harassment was “severe or pervasive.” A single training, without evidence of repeated exposure to race-based harassment, is likely insufficient, attorneys said.

While the Tenth Circuit last year affirmed the dismissal of a White officer’s case against the Colorado Department of Corrections, citing a lack of evidence that the agency’s anti-bias training was race-based harassment, two circuit judges said in a concurring opinion that training could create a hostile environment when combined with ongoing racial stereotyping or expectations of discriminatory treatment.

Similar cases challenging summary judgment rulings over allegedly offensive anti-bias trainings are pending before the Ninth and Third circuits.

Employer Lessons

As courts define the legal boundaries of DEI initiatives, recent rulings offer lessons for employers developing DEI programs that identify and address racism and implicit bias in the workplace, attorneys said.

The Second Circuit ruling is a reminder that ignoring complaints about training content or race harassment implies approval and raises liability, Gluck said.

Tony Torain, a partner at McDermott Will & Emery LLP, said anti-bias trainings must be neutrally conducted and devoid of “loaded language” concerning the history or background of a certain particular group.

“That’s where people might run the risk of getting EEOC claims,” he said, “because they’re feeling that they’re being alienated just because of their racial identity.”

The case is Chislett v. New York City Department of Education, 2d Cir., No. 24-972, opinion issued 9/25/25.