Dive Brief:
- A White former employee of Seattle’s human services department should be able to argue his hostile work environment claim in front of a jury, the 9th U.S. Circuit Court of Appeals determined Monday, reversing a district court’s grant of summary judgment for the city (Diemert v. City of Seattle).
- The worker pointed to numerous incidents — at least 10 — related to his race over a five-year span, the court found, making them “sufficiently numerous, frequent, and severe” to create a triable claim. Some incidents took place at DEI trainings, but the “racial hostility spilled over into the workplace generally,” the worker said.
- The decision is notable as the 9th Circuit is widely regarded to be among the most liberal circuit courts, demonstrating that, depending on their implementation and effect, some DEI initiatives — typically a target of more right-leaning critics — may be more widely interpreted as violative of civil rights.
Dive Insight:
The employee, who began working for the city as a program intake representative in 2013, participated in a program called the Race and Social Justice Initiative, which the city began in 2004. Human services department workers were “required” to participate in two RSJI activities per year, although they could still attain satisfactory performance evaluations if they did not meet this requirement, per court documents.
The initiative included racial affinity groups along with trainings and workshops focused on concepts of privilege and marginalization. Activities included “privilege bingo” and, according to the worker, “a ‘racist/anti-racist continuum’ exercise in which employees were required to line up based on how ‘racist’ or ‘anti-racist’ they perceived themselves to be in comparison to their coworkers.”
The worker alleged that “supervisors and coworkers applied the Racial Initiative’s teachings to justify discriminatory behavior, deny him advancement, and retaliate when he objected.”
He racked up a number of incidents that he said pointed to a hostile work environment, including:
- Being discouraged from applying for a supervisory role and then needing to perform the role’s responsibilities without a pay increase after a person of color was hired;
- Being asked what he could “possibly offer our department” as a White male;
- Being told “that it was ‘impossible’ to be racist toward ‘white people’;”
- Being encouraged to step down to allow a person of color to take his role;
- Hearing from trainers that “white people are cannibals,” that “racism is in white people’s DNA” and that “white people are like the devil;”
- Being called a “colonist;” and more.
The case has striking similarities to Chislett v. N.Y.C. Dept. of Educ., which the 2nd U.S. Circuit Court of Appeals also reversed after a district court granted summary judgment to the defendants, New York City’s Department of Education. In that case, a White worker was similarly required to attend DEI trainings that sought to identify certain values as “white supremacy culture” and asked White workers to “take a step back and yield to colleagues of color.”
As in Diemert, the worker in Chislett alleged the racially hostile environment left the trainings and bled into the workplace more broadly. She also alleged that racial language was used with her directly, as she was called “white and fragile,” among other terms.
Notably, like the 9th Circuit, the 2nd Circuit is also considered a more liberal-leaning court.
Attorneys have previously suggested that employers audit their DEI programs to ensure they don’t violate the law. A strong program avoids language that classifies workers as oppressors or oppressed, avoids goals and preferences and accompanies training on laws governing hiring and promotion, an attorney previously wrote for HR Dive.
While the Seattle worker’s hostile work environment claim is moving forward, the 9th Circuit upheld the district court’s dismissal of disparate treatment, retaliation and equal protection claims.
Alan Pyke, a communications director for Seattle’s city attorney, told HR Dive the city was reviewing the decision and discussing potential next steps.