Tenth Circuit Ruling Highlights Potential Pitfalls for Employers’ DEI Programs

April 04, 2024

The landscape of Diversity, Equity, and Inclusion (DEI) training initiatives in the workplace is evolving rapidly. Within the last several years, we saw an increase in DEI training and corporate/client encouragement for such training initiatives. Recently, however, Title VII plaintiffs - mainly white males - are now challenging aspects of DEI training with some success. These recent DEI Title VII cases illustrate how DEI initiatives, while well-intentioned, can inadvertently expose employers to legal liabilities if not carefully implemented. 

Wichita, Kan. (April 4, 2024) - The landscape of Diversity, Equity, and Inclusion (DEI) training initiatives in the workplace is evolving rapidly. Within the last several years, we saw an increase in DEI training and corporate/client encouragement for such training initiatives. Recently, however, Title VII plaintiffs - mainly white males - are now challenging aspects of DEI training with some success. These recent DEI Title VII cases illustrate how DEI initiatives, while well-intentioned, can inadvertently expose employers to legal liabilities if not carefully implemented. 

The Tenth Circuit’s recent published opinion in Young v. Colorado Department of Corrections is instructive. While employed by the Colorado Department of Corrections, Joshua Young participated in mandatory Equity, Diversity and Inclusion (EDI) training, which he claims subjected him to a hostile work environment due to its content. Young’s complaint alleged that the training program included material that he found demeaning based on race, promoting divisive theories that, in his view, would hurt interactions with personnel and inmates. Young alleged that the EDI training included statements suggesting that “all whites are racist” and promoted the idea that the concept of race was created by white individuals to justify the oppression of people of color, further stating that ‘whiteness’ and ‘white supremacy’ adversely affect ‘people of color’ in the United States. Another segment of the training allegedly referred to ‘white fragility’ as a phenomenon in which white individuals react with discomfort and defensiveness when confronted with information about racial inequality and injustice.

Following his resignation, sparked by his objections to the training’s ideology, Young sued, asserting violations of Title VII and the United States Constitution’s Equal Protection Clause, focusing on the training’s alleged promotion of race-based policies and a hostile work environment.

The Tenth Circuit ultimately found that Young had failed to state a Title VII claim. It held that the training materials, standing alone, were insufficient to show that Young experienced a hostile work environment. That said, the Tenth Circuit provided a warning to employers by stating that Mr. Young’s objections to the EDI training “are not unreasonable: the racial subject matter and ideological messaging in the training is troubling on many levels.” The Tenth Circuit further noted that “race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment. The rhetoric of these programs sets the stage for actionable misconduct by organizations that employ them.”

The Tenth Circuit also affirmed the dismissal of Young’s Equal Protection claim due to a lack of standing. Young was no longer employed by the Department of Corrections, which undermined his capacity to claim injury from the Department’s practices or seek prospective relief from the court. Young sought to enjoin the Department from using the DEI training materials. But because he was no longer a current employee, any “relief in the form of a change in the Department policy would not redress an injury to him.” Therefore, the Tenth Circuit concluded Young lacked standing to pursue his equal protection claim. 

The Tenth Circuit’s warning about perceived issues concerning DEI programs was unusual, and drew criticism from one member of the three-judge panel. But this warning did not occur in isolation; other federal courts in Washington and Pennsylvania have found that DEI initiatives can sustain a Title VII hostile work environment claim.

The implications of these developments for employers are significant. It is clear that while DEI initiatives are crucial for fostering an inclusive workplace, the execution of these programs must be carefully considered to avoid potential legal pitfalls. Employers should:

  • Carefully Review DEI Program Content: Evaluate whether the training materials and program content might inadvertently create divisions among employees or stereotype groups based on race or other protected characteristics.
     
  • Foster Positive, Constructive Dialogue: Structure DEI initiatives to encourage positive dialogue and understanding, steering clear of any language that might be perceived as essentialist or negative.
     
  • Engage in Continuous Legal Review: Regularly consult legal counsel to review and adapt DEI programs to align with evolving legal standards and best practices.
     
  • Document DEI Efforts: Maintain thorough records of the planning, execution, and employee participation in DEI programs to demonstrate compliance and good faith efforts should legal issues arise.

By navigating these considerations thoughtfully, employers can continue to advance DEI objectives while minimizing legal risks and meeting their goal to create a more inclusive and legally compliant workplace environment.

For further information more about this decision and its implications, contact the author of this alert. Visit our Labor & Employment Practice page to learn more about our capabilities in this area.

Author:

Jeremy K. Schrag, Co-Managing Partner - Wichita and Kansas City