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[Eugene Volokh] Anti-White Speech Stemming from Seattle "Race and Social Justice Initiative" Training May Have Been Legally Actionable Workplace Harassment
From Diemert v. City of Seattle, decided by Chief Judge Mary Murguia, joined by Judges William A. Fletcher and Lucy H. Koh:
During his employment, Diemert participated in the City's Race and Social Justice Initiative (the "RSJI"). The RSJI aims to undo institutionalized racism in the workplace by, among other things, requiring employees to attend trainings on racial justice and facilitating racially aligned affinity groups.
Diemert brought various claims, most of which the court rejected; but the court allowed a hostile environment claim to go forward based on the following allegations:
Diemert points to the following as evidence of an objectively hostile work environment: (1) in 2015, Diemert was discouraged from applying for a supervisory role, a person of color was hired for the position, and Diemert was required to perform the responsibilities of the position without receiving the commensurate title or pay; (2) in 2015, [a manager in Diemert's department] asked Diemert, "[W]hat could you possibly offer our department …, being a straight white male?"; (3) in 2016, manager Gloria Hatcher-Mays told Diemert "that it was 'impossible' to be racist toward 'white people'"; (4) in 2017, supervisor Tina Inay encouraged Diemert to step down from his lead role in the department in part to allow a person of color to take his position; (5) in 2017, a coworker called Diemert a "racist" and told him "that 'white people' are to be blamed for 'all atrocities' and that the United States was built upon a system of 'white supremacy'"; (6) in 2019, Diemert overheard RSJI trainers say that "white people are cannibals," that "racism is in white people's DNA," and that "white people are like the devil"; (7) between 2019 and 2020, supervisor Shamsu Said called Diemert a "colonist," "physically accosted" Diemert, accused Diemert of having "white privilege," and informed Diemert that he was "to blame for all injustices in the United States"; (8) in 2020, coworkers told Diemert that he "did not have a right to speak about black oppression" and accused him of using his "white privilege" to discredit their lived experiences; (9) in 2021, a new coworker stated that his "[s]elf and personal care" included "being around Black and brown folks"; and (10) also in 2021, Diemert was criticized by coworkers after Diemert defended critical race theory bans in connection with a discussion of the Tulsa Race Massacre.
And here's the bulk of the court's analysis of this claim (which strikes me as more precedentially significant than the court's analysis of the other, rejected, claims):
To succeed on a hostile work environment claim under Title VII, Diemert must show: (1) that he was subjected to verbal or physical conduct because of his race, (2) that the conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment….
"The working environment must both subjectively and objectively be perceived as abusive." To determine whether a work environment is abusive, courts consider the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." "No single factor in this non-exhaustive list is required." "The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct."
"Not every insult or harassing comment will constitute a hostile work environment." "'[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)' will not trigger Title VII's protections." "The standard for judging hostility is meant to 'ensure that Title VII does not become a "general civility code."'" And "properly applied, this standard 'will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'"
Workplace training programs designed to address racial barriers are not inherently discriminatory, and nothing in Title VII prohibits employers from either discussing historical and ongoing discrimination against persons of color or seeking to address such discrimination. See, e.g., Chislett v. N.Y.C. Dep't of Educ. (2d Cir. 2025) (rejecting the proposition that "the conduct of implicit bias trainings is per se racist"). But "Title VII's disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs." Accordingly, race-conscious training programs may violate Title VII when they create a racially hostile work environment. See Chislett ("When employment trainings discuss any race 'with a constant drumbeat of essentialist, deterministic, and negative language [about a particular race], they risk liability under federal law.' And when a municipal agency consistently ignores the racial harassment of employees in both trainings and workplace interactions, it can be held liable.")….
Here, the parties dispute only whether the workplace incidents at issue were sufficiently severe or pervasive to create an objectively hostile work environment…. We conclude that [the alleged] incidents were sufficiently numerous, frequent, and severe to create a triable issue as to the existence of a racially hostile work environment. Viewed in isolation, the incidents at issue here might not be sufficient. We have held, for example, that referring to a Chinese coworker as "China Man" while mocking her appearance; telling a Hispanic coworker that "Hispanics do good in the field"; and referring to a female coworker as a "madonna," a "regina," and a "castrating bitch," were not severe enough to create a hostile work environment. But unlike cases involving only one or two racially offensive incidents, Diemert has presented evidence of numerous incidents over a five-year span.
This case, therefore, is comparable in frequency and severity to cases in which the evidence supported a finding of a hostile work environment. Reynaga v. Roseburg Forest Prods. (9th Cir. 2017), for instance, is instructive. There, the plaintiff, Reynaga, was one of two Hispanic employees who worked as a millwright. Reynaga alleged that his coworker made racially derogatory comments and engaged in other harassing conduct repeatedly over his six years of employment, including: (1) using racial slurs to refer to Blacks and Arabs; (2) stating "I'm a true believe[r] that we should close the borders to keep motherf---ers like you from coming up here"; (3) stating "Minorities are taking over the country"; (4) asking Reynaga whether "all Mexican women [were] fat"; (5) referring to Native American women, one of whom Reynaga was married to, as "nasty fat squaws"; (6) belittling Reynaga in front of a coworker as "a big boy" with a "little, tiny dick" who "needs all the help he can get"; and (7) while Reynaga was working, commenting "Boy, you're slow," and remarking to the other millwrights, "Man, he just dinks around." We held that a reasonable trier of fact could find that the coworker's conduct was sufficiently severe or pervasive to create a hostile work environment ….
This case is comparable. As in Reynaga, the incidents at issue here referenced Diemert's race, targeted Diemert, caused Diemert to file complaints, required the City to separate Diemert from an allegedly harassing coworker, occurred over a substantial period of time, and were comparable in number and frequency.
This case is also comparable to Chislett. There, the plaintiff, Chislett, was a white woman who directed an initiative under the Office of Equity & Access in New York City's education department and supervised fifteen employees. Chislett attended bias trainings where an instructor stated that the "values of white culture are supremacist," and an executive director declared that "[t]here is white toxicity in the air, and we all breathe it in." At an overnight retreat, speakers "stated that 'white culture's values' are 'homogenous and supremacist.'"In another training, participants were asked to write "white values" on a poster and form a line based on their proximity to white privilege. The trainings conveyed a persistent message that "white culture is generally defensive; entitled; paternalistic; power hoarders; and privileged." At another staff retreat, Chislett was singled out by coworkers in a fifteen-minute confrontation that referenced her race. She was assigned a leadership coach who "offered [her] insight into what it means to be a white leader leading staff members of color."
Racialized comments from trainings spilled over into the broader workplace. When Chislett "asked her Black subordinate … why she was late to a meeting," for example, the employee accused Chislett of making a "race-based judgment" and told Chislett that she "could 'not be trusted.'" The employee later referenced the incident and scolded Chislett, "How dare you approach me out of your white privilege!" Another Black subordinate called Chislett a "racist," both subordinates told Chislett that "'race [wa]s at the center of every conversation' they had with her," and other subordinates told Chislett "that she was 'socialized as a white person to be defensive.'" Chislett also heard employees "ma[k]e racist statements about a colleague of partially white parentage." At one point, Chislett was removed from her supervisory responsibilities—although her title and pay remained the same. Many of her supervisory duties were transferred to a Black subordinate. Viewing the facts in the light most favorable to Chislett, the Second Circuit concluded that a rational juror could find that Chislett experienced a racially hostile work environment.
Here, too, the evidence presented by Diemert, accepted as true, would show that Diemert was subjected to a series of racially offensive statements and generalizations bearing little or no connection to legitimate training efforts, that he was denied or discouraged from pursuing opportunities for advancement on account of his race, and that he received scant support from his superiors when he challenged what he perceived as discriminatory behavior. Construing this evidence in the light most favorable to Diemert, and drawing all reasonable inferences in his favor, we cannot say, as a matter of law, that a reasonable jury could not find that Diemert was subjected to a racially hostile work environment. Where "severity is questionable, 'it is more appropriate to leave the assessment to the fact-finder than for the court to decide the case on summary judgment.'" …
I'm generally pretty skeptical of imposing "hostile work environment harassment" liability on employers based on their or their employees' speech to the workplace at large (as opposed to speech targeted to a particular employee); see here for more. But while some judges have shared these First Amendment concerns, other judges (and other government actors) seem to be fine with such speech restrictions; and here the bulk of the speech was indeed allegedly speech targeted at employees because of their race.
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