Dive Brief:
- A lower court erred when it held that a White former special education administrator had not properly plead a First Amendment claim alleging that her employer retaliated against her for her refusal to adopt an “equity mindset” at the request of her co-workers, the 7th U.S. Circuit Court of Appeals held Wednesday.
- The plaintiff in Spengler v. CESA 7 trained and supported special education directors in Wisconsin school districts. She alleged that she was demoted for refusing the equity mindset requirement, which she viewed as racist and discriminatory against White people. She alleged violations of Title VII of the 1964 Civil Rights Act as well as the First and Fourteenth Amendments.
- A district court held for the employer on all counts, ruling that the plaintiff was fired because of her objections to the employer’s opinion or ideology rather than her race. It added that these objections were not constitutionally protected because she was never forced to say anything against her will. The 7th Circuit reversed solely on the First Amendment claims as to the employee’s beliefs and remanded for further proceedings.
Dive Insight:
The First Amendment protects a public employee from discharge based on their beliefs, including any attempt to force such an employee conform their beliefs to “state-selected orthodoxy,” the 7th Circuit said, citing its precedent and that of the U.S. Supreme Court. Because the plaintiff explicitly stated that she had declined to accept the beliefs of her employer, this language sufficed to plead a claim under applicable law, the court concluded.
However, no reasonable jury could conclude that the plaintiff had been discriminated against on the basis of her race, the 7th Circuit added. The court said the plaintiff had conceded on this point, admitting that the defendants likely would have disciplined a Black employee for a similar refusal. The plaintiff also acknowledged that all of the coaches on her project were also White and that she was ultimately replaced by another White female employee.
The plaintiff alleged that her employer’s stance placed ideological demands on White employees that were not similarly required of employees of color, but the 7th Circuit also rejected this reasoning. It held that the employer asked all coaches in the plaintiff’s role to “recognize their implicit biases and resist [White] supremacy,” and the employer did not state that all White people are naturally and necessarily racist.
The court’s in-depth analyses of an equity-focused policy may provide some insight into an ongoing debate within the employment law sphere. Diversity, equity and inclusion programs have faced widespread scrutiny in recent years, especially after the Trump administration directed federal regulators to end unlawful DEI practices.
Since then, HR teams have had to contend with a reversal on the subject by agencies like the U.S. Equal Employment Opportunity Commission. EEOC’s current Republican majority has consistently cautioned employers about DEI-related discrimination and last year issued guidance outlining potential examples of unlawful DEI programs, noting that an employer’s DEI training may be cited as evidence of a hostile work environment.
Courts have gradually begun to examine claims challenging DEI programs with varying outcomes for plaintiffs. For example, the 10th Circuit held in May that Colorado’s Department of Corrections did not create a hostile work environment by requiring a plaintiff to attend a training program that focused on topics such as racial sensitivity and historical suppression of minorities.
The 10th Circuit further held that, despite the training’s use of terms such as “white fragility” and “white exceptionalism” and the plaintiff’s view that the training made “disturbing generalizations” about White people, the plaintiff failed to show how the training altered the terms, conditions or privileges of his job.
In another case, the 2nd Circuit last year revived a lawsuit brought by a White teacher who challenged her employer’s use of a mandatory implicit bias training in which co-workers made claims that a rational jury could have considered racist.
Employers can generally reduce the legal risk of DEI programs — and DEI training in particular — by focusing on topics such as antiharassment, antidiscrimination and respectful workplace behavior rather than systemic or group-level concepts, Epstein Becker Green attorneys said in a May presentation. The attorneys also recommended avoiding training that suggests any group of employees has a particular bias or inherent bias on the basis of protected characteristics.