DEI Training Appeals Seize on Recent SCOTUS Reverse Bias Ruling

White employees alleging harassment stemming from workplace DEI training will test the reach of a recent Supreme Court “reverse” bias ruling as their appeals seek to mark boundaries on anti-discrimination programs.

Three cases currently before federal appeals courts rely in part on the justices’ June ruling in Ames v. Ohio Department of Youth Services, which outlawed a standard requiring nonminorities to prove, as something extra, that their employer is the rare one that discriminates against the majority.

The cases challenge various workplace training programs, including instruction on “White privilege,” race-segregated sessions, and a video titled “White Teachers Are a Problem.”

The Justice Department backed one of the appeals, brought by Seattle municipal worker Joshua Diemert, saying there are reasons to believe a federal trial court judge rejected his harassment claim based “on a standard that is no longer good law.” Those reasons include a statement in the the lower court ruling that Diemert failed to “present that rare and unusual case,” which is language similar to the rare-and-unusual-employer or “background circumstances” test now banned by Ames, the DOJ told the US Court of Appeals for the Ninth Circuit.

But several employment attorneys cast doubt on whether the district court held Diemert to a heightened standard and said they aren’t convinced that the DOJ’s argument will move the needle. Instead they said the court used the traditional, separate standard for hostile work environment claims and found Diemert’s proof lacking.

For Ames to apply there would likely need to be some showing that a court improperly imposed the extra requirement for nonminorities that Ames prohibits, said Gabrielle Levin of Mayer Brown. She didn’t read the Diemert decision that way, but as instead applying the proper hostile-environment analysis, she said.

But some believe Ames’ general principle banning different standards based on majority-class status in employment bias cases could extend to harassment claims.

The expected rulings may add fuel to President Donald Trump’s push back against diversity, equity, and inclusion programs, which he believes can result in illegal bias. Lawsuits challenging the content of race-based and LGBTQ+-focused training have mushroomed after employers started including instruction on equity, with employers who litigate rather than settle generally getting favorable rulings.

William E. Trachman of Mountain States Legal Foundation said he anticipates more harassment lawsuits over DEI training. He pointed to Ames’ general principle that different standards don’t apply to nonminorities, and to the Trump administration’s stance, including in recent Equal Employment Opportunity Commission guidance.

Post-Ames Landscape

Trachman, who represents Joshua Young and Zach De Piero in the other two appeals, said the lower courts in all three cases mistakenly discounted what went on in the training because the plaintiffs are White.

The attorney said those appeals, before the Tenth and Third circuits respectively, also “will be citing Ames,” but for the principle that courts can’t view harassment claims differently depending on the race of the worker suing.

If the targeted race was switched from White to Black or Hispanic, the training would readily be seen as creating a hostile work environment, the lawyer said. The idea that an employer could get away with that sort of harassment solely because the targeted group is Whites “is just intuitively bankrupt,” he said.

Attorneys with civil rights organizations offered a different view of the post-Ames legal landscape, questioning its application to these kind of claims.

The DOJ didn’t really come out full bore for Diemert, instead couching its brief in terms such as “to the extent” the lower court used a heightened standard, Levin said. Diemert’s brief doesn’t really hammer away at Ames, either, GLAD Law’s Gary Buseck said. It’s a little surprising the DOJ filed a brief but the Trump administration has been going out of its way to demolish this type of training, he said.

Ames was a narrow ruling that had no effect on the severe-or-pervasive test for proving hostile-environment harassment, said ACLU Women’s Rights Project deputy director Ming-Qi Chu. Diemert’s case didn’t meet that well-established, fact-intensive standard, she said.

Because of the fact-specific test, a decision on one employer’s DEI training won’t necessarily apply to other employers’ programs, she said.

Stretch to Extend

But a ruling critical of DEI training could cause some employers to take a backwards step, which would be unfortunate and cause real harm, said Alexsis Johnson of the NAACP Legal Defense and Educational Fund Inc.

And it’s a stretch to extend Ames to these other cases, which directly challenge inclusion and anti-discrimination measures, Johnson said. Ames didn’t challenge anything like that. It challenged discrete job decisions that directly impacted the plaintiff, she said.

Unlike the test in Ames, the severe-or-pervasive-harassment standard applies to everyone, she said. Hostile environment claims are hard to prove and countless cases involving racial slurs have been deemed insufficient, she said.

Trachman said the fact that the training stemmed from official government policies makes the harassment severe.

The outcome in these cases will hinge on comments and other harassment that allegedly ensued from the training and whether it was sufficiently severe or pervasive to impact the work environment, Mayer Brown’s Levin’s said.