Religious Objection to Race, Gender Training Gets 8th Cir. Look

Two Native American, Christian employees of a Minnesota psychiatric hospital will try to convince a federal appeals court to revive their lawsuit challenging workplace anti-racism and gender identity trainings on religious and First Amendment grounds.

A three-judge panel of the US Court of Appeals for the Eighth Circuit is slated to hear oral argument Thursday in a bid by Joseph Norgren and his son and co-worker Aaron Norgren to overturn a lower court ruling that they didn’t show how their objections to the mandatory trainings led to an adverse employment action against them.

The computer-based workplace training units that the Minnesota Department of Human Services required its employees to complete contradicted the Norgrens’ sincerely held religious beliefs and ran afoul of their First Amendment rights by compelling them to speak contrary to their personal views, they alleged.

This case comes as employers and federal courts are grappling with religious-based challenges to a wide swath of company measures—from diversity, equity, and inclusion programs to anti-bias training and pronoun policies.

Litgation based on faith-based objections to workplace diversity trainings is also percolating after the US Supreme Court in June established a new standard making it more difficult for employers to reject workplace religious accommodations under Title VII of the 1964 Civil Rights Act unless they can show that the burden of granting that accommodation “would result in substantial increased costs” to the business.

The Eighth Circuit’s ultimate decision could clarify the pleading standard for religious discrimination and retaliation claims under Title VII as they relate to workplace diversity trainings.

The case will be heard by Judges Ralph R. Erickson and David R. Stras, both Trump appointees, as well as Michael J. Melloy, a George W. Bush appointee.

Not ‘Traditional View’

Joseph Norgren worked as a security counselor at the Minnesota Security Hospital for 27 years, while his son worked at the hospital for seven years, according to their appellate brief.

The Norgrens objected to the anti-racism training after equating it to critical race theory, which argues that legal institutions are inherently racist and views race as a social construct.

The theory “rejects the traditional view of equality under Title VII” by suggesting that any member of a racial minority group is “a victim of a rigged system” and those born into so-called privileged races are “automatically and inherently exploiters of minorities,” the Norgrens said.

They also opposed the hospital’s gender identity training, which concerns the use of workers’ preferred pronouns. That training runs contrary to their religious belief that “God created only two sexes and two genders,” they said.

Both unsuccessfully sought a religious exception from the gender identity training, though they never asked their employer to exclude them from the anti-racism training, court papers said.

“The Norgrens have a right to work for a state employer while remaining true to their religious beliefs. They cannot be forced to repeat racist propaganda and use pronouns inconsistent with another employee’s biological sex based on DHS’ preference for those thoughts and behaviors,” they told the appeals court.

But the US District Court for the District of Minnesota’s decision would allow the state agency “to do just that,” they said.

Higher Burden?

The Norgrens also argued that the district court inappropriately used the strict “summary-judgment-like standard at the pleading stage—one that employees asserting discriminatory conduct by an employer can hardly be expected to meet.”

“The Norgrens’ pleadings plausibly allege causes of action sufficient under court rules to survive a motion to dismiss,” they said.

Joseph Norgren insisted he was forced to quit prematurely because of the “hostile and uncomfortable work environment” the trainings created.

But he told his supervisor three weeks before his exemption got denied that he was planning to retire in 2021, Judge Ann D. Montgomery of the Minnesota federal court said in dismissing the case. His bias claims also failed because “requiring all employees to undergo diversity training does not amount to abusive working conditions,” she said.

Aaron Norgren’s allegations were dismissed for similar reasons. He asserted that the agency denied him a promotion because of his opposition to the trainings, but the judge found that he didn’t sufficiently allege he was in fact qualified for one.

The Minnesota DHS urged the appeals court to affirm the district court’s ruling, saying the agency didn’t engage in any unconstitutional conduct that violated the workers’ free speech.

The Norgrens also failed to plausibly show that they were subject to adverse actions or treated differently from similarly situated employees to keep the case afloat on Title VII grounds, it said.

The Norgrens are represented by Eckland & Blando LLP and Upper Midwest Law Center. The state agency is represented by the Minnesota Attorney General’s Office.

The case is Norgren v. Minn. Dep’t of Human Servs., 8th Cir., No. 23-01208, oral argument scheduled 12/14/23.