Penn State Professor Loses Hostile Work Environment Case
“When employers talk about race—any race,—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.”
It’s been a while since we posted about former Penn State Professor Zack De Piero, who filed a federal lawsuit against Penn State for forcing him to attend DEI trainings so radical in nature that they allegedly created a hostile work environment.
From our initial post in August 2023: Penn State Prof Sues School for Allegedly ‘Discriminating Against Him for Being White’:
This professor brings up the ‘anti-racist’ movement at the school, and we all know what that means.
Campus Reform reports:
Penn State English prof sues university for discriminating against him for being White
Zack K. De Piero, a White English professor formerly employed by Penn State University, Abington, resigned from his position and filed a federal lawsuit against the university, alleging discrimination based on his race.After De Piero was hired, he said he almost immediately felt pressure from faculty to conform to their political viewpoints and was expected to teach “that the English language itself is ‘racist’ and, furthermore, that white supremacy exists in the teaching of writing of English,” his lawsuit reads.
“As time went on, the ‘antiracist’ movement continued gaining more power and traction at Penn State Abington to the point of pretty much becoming entrenched in the centralized mission of the school,” De Piero said in an interview with Campus Reform.
“After I raised important questions about it during various meetings, my personal relationships with Abington colleagues dwindled down to only a few people,” he added.
The lawsuit says that the “antiracist” activism of the defendants reached a high after the murder of George Floyd in May 2020.
During a Zoom meeting on June 5, 2020, faculty were led through a breathing exercise when white and non-Black people of color were asked to hold their breath “to feel the pain” of their Black counterparts.
According to the lawsuit, De Piero received multiple emails from supervisors of the writing program at Penn State Abington in October 2020 to watch a video entitled “White Teachers Are a Problem.”
You may, or may not, be surprised to find out that Penn State’s first tactic was to file a motion to dismiss, basically arguing that DEI/CRT trainings and other requirements could not constitute a hostile work environment.
Fortunately, in January 2024, the presiding federal judge disagreed: Federal Judge Rules DEI/CRT Trainings and Policies Can Violate Federal Law:
In an important development in the battle against diversity, equity, and inclusion (DEI) and critical race theory (CRT), a federal judge has ruled that DEI/CRT trainings and policies can be so one-sided and discriminatory that they can constitute a “hostile work environment” for white employees subjected to them.
From Fox Digital: Obama judge rules CRT trainings can violate federal law after it traumatized White teacher:
An Obama-appointed judge ruled in favor of a Pennsylvania college professor who sued his employer over critical race theory trainings he alleged were anti-White, including one that said “White Teachers are a Problem,” according to a lawsuit.
A former professor at Penn State Abington, Zack De Piero, sued for race discrimination after he was allegedly subjected to training that the English language is racist and the embodiment of “White supremacy,” along with additional tirades against White people in professional development sessions and meetings, according to a lawsuit.
Apparently, this caused De Piero significant trauma:
“There’s a constant ticker tape, like a newsreel. I see, I hear that disgusting evil phrase. ‘White teachers are a problem,’” he said. “I wish I could get it out of my head, but I can’t.”
“I still wake up with this stuff. I still go to bed with this stuff. It still bothers me. It’s changed me in a lot of ways. You often hear that hardship leads to greater character. While that might be true, it certainly comes at a cost,” he said.
The judge in the case, Wendy Beetlestone, ruled as follows:
Taken together, these allegations plausibly amount to “pervasive” harassment that…has stated a plausible claim for a hostile-work environment based on race.
To be clear, discussing in an educational environment the influence of racism on our society does not necessarily violate federal law….But the way these conversations are carried out in the workplace matters: When employers talk about race—any race,—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.
For the reasons set forth above, [Penn State’s] Motion to Dismiss will be denied with respect to his hostile work environment theory of liability pressed under Title VII [and other federal statutes].
[emphasis added]
Good news, right? Well, not so fast.
After more than a year of discovery, legal wrangling, and Penn State filing for summary judgment — essentially asking the court to rule in its favor without a trial, Judge Beetlestone threw out De Piero’s case.
From Judge Beetlestone’s order, which you can review here, and at the end of this post:
De Piero alleges that Defendants violated Title VII…by “creat[ing] a racially hostile environment” at Penn State Abington…Title VII…renders employers liable for workplace harassment that is “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.”
“[S]evere” harassment and “pervasive” harassment are not the same thing. The terms represent two distinct types of hostile work environment claims. “[S]ome harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.” Thus, in certain circumstances, a single incident can support a hostile work environment claim. But in other cases, plaintiffs seek to remedy “the cumulative effect of a thousand cuts,” and acts “which are not individually actionable” but “may be aggregated to make out a . . . claim.”
The events underlying De Piero’s claim, while unpleasant to him, [were not] sufficiently “extreme” to sustain his charge of “severe” harassment…
De Piero’s remaining hostile work environment claims therefore rest on a theory of pervasive harassment. Pervasive harassment is demonstrated by “a continuous period” of misconduct…[but] while the complained-of conduct undoubtedly “engender[ed] offensive feelings” in De Piero, no rational trier of fact could determine that he was subjected to the “steady barrage of opprobrious racial comments” required to sustain his pervasive harassment claim…
For the reasons set forth above, no reasonable jury could determine that the twelve incidents at issue here constitute “a constant drumbeat of essentialist, deterministic, and negative language” that warrants his hostile work environment claims to go to trial. Thus, summary judgment shall be granted in Defendants’ favor on Plaintiff’s hostile work environment claims.
[many citations omitted for clarity]
And the court closed the case.
So last week, Professor De Piero appealed to the U.S. Court of Appeals for the Third Circuit, which covers New Jersey and Pennsylvania.
We (either the Legal Insurrection Foundation or the Equal Protection Project) are strongly considering filing an amicus curiae, or “friend-of-the-court,” brief in the case explaining the heinous nature of DEI and its impact on those subjected to it.
This is especially so since the Supreme Court recently issued a unanimous opinion in Ames v. Ohio Department of Youth Services holding that raising the bar for so-called “majority” (read: White) plaintiffs is improper. Because this SCOTUS opinion, which you can review here, was not available when Judge Beetlestone issued her order throwing De Piero’s case out, it might help to view the case in light of Ames and see if indeed maybe De Piero was subjected to a hostile work environment, or at least has enough there to go to trial.
We will keep you informed.
Judge Beetlestone’s Order throwing out Professor De Piero’s case:
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Comments
Proffesor?
LOL.
I guess it could have been worse … the initial ideas had involved peen hammers, but they couldn’t be sure that all the non-black zoom participants would have one at home … so they went with the breath-holding. It wasn’t dangerous because once they passed out they would start breathing again.
It all adds up to more of a retarded work environment than hostile. I mean, it’s clearly hostile, but it is so retarded and intellectually offensive that the hostility part fades far into the background.
Hostility takes its form in being so incredibly retarded that those who enforce the retardedness do so through creating a hostile work environment.
If being required, as a condition of employment, to sit in multiple long sessions where one is exposed to abusive sessions planned, organized and approved by in advance by the employer which the Court declined to acknowledge as ‘severe or pervasive harassment’ and thus not meeting the threshold to sustain an actionable claim…. it would seem to rule out any claims against employers for acts that are spontaneous or made by people in an individual capacity v with the explicit planned approval of the employer. IOW any lesser claims based on a single micro aggression, ‘misgendering’, pronoun refusals, dead naming, an off color/offensive joke/statement or even a series of these would also not make the cut for an actionable claim. Perhaps not even if they were deliberately organized.
They don’t. “Hostile work environment” actions that are based on a single incident almost never succeed. This one wasn’t based on one incident but on about a dozen; this judge decided that wasn’t enough. Maybe the appeals court will disagree. But one incident is almost always a non-starter.
Milhouse,
What I am attempting to communicate is that since lesser actions are barred then the employer has less to rely upon in forcing attendance at DEI struggle sessions particularly in conjunction with SCOTUS discrimination ruling this week. Hard to make someone attend a struggle.session of lectures about their ‘privilege’ of race/sex/sexual orientation under the new framework. IMO they can probably compel attendance during work hours but the content of the struggle session and ability to ‘clap back’ v sit passively and be lectured seems to have changed.
One has to realize that America IS a WHITE Country. All the Founders were White and our country remains predominantly White. If anyone is offended by White people in America, this isn’t an iron curtain country and they are always free to leave. Therefore, if anyone is disturbed by White people, it is THEIR PROBLEM and certainly not ours.
Anyone who moves here or lives here is not at all welcome to stay and demand changes favourable to the country they came from. Get them the HELL OUT and don’t let them come back!
I’m White and I’m Proud
George Floyd was not murdered. Self-induced overdose.
Anyone who wishes to undermine ANY Republican candidate for senate’s race, or not support ANY Republican who has won the senate nomination, or fails to vote for the Republican senate candidate read this story.
The CCP would approve of Penn State’s study session.
Judge Beetlejuice is Nigeria born and apparently grew up in Britain. I bet her values are not American. One Strike, She was an Obama appointee. Two Strikes. She doesn’t think De Piero’s work place was hostile. Three strikes. I bet should would break if I subjected her to a constant harangue of “Black women are angry, racist, and incompetent and are usually fat to boot.” Four Strikes, I’d ask where they find these people but obviously in the case of Beetlejuice it was Nigeria/Britain.
Judge Beetlestone…say his name three times and he’ll try to creep on your daughter.
female judge
Talk about bad timing after the Supremes voted 9-0 that you can discriminate against a white guy. It wouldn’t surprise me if this is reversed.
Wrong. SCOTUS did not rule that you can’t discriminate against a white guy, because no one has ever claimed that you can. It has been universally agreed ever since the Civil Rights laws were enacted that they apply equally to all people. The Ames case wasn’t about whether discrimination against “majorities” is legal, but about how to prove that it has happened in any given case.
The defendants in this and every other case didn’t come to court admitting that they’d discriminated and claiming it was legal; they denied ever discriminating in the first place. The problem was the courts artificially making it harder to prove some kinds of discrimination than others; and that is what SCOTUS ruled against.
In this case that didn’t come into it. The burden was always the same on this plaintiff as it would have been on a similarly-situated black plaintiff. The question is only whether he met the burden. The trial judge said he didn’t, but maybe the appeals court will say he did. Because it sure looks like he did.
“White Teachers are a Problem,”
“Black Teachers are a Problem,”
“Homosexual Teachers are a Problem,”
“Christian Teachers are a Problem,”
“Jewish Teachers are a Problem,
“Muslim Teachers are a Problem,”
Which is not discrimination if your employer said it?
They’re all the same, and this judge says that none of them make for a hostile work environment if they’re only said 12 times. Maybe she thinks it has to be 15 or 20 times.
My guess is that any of those said 12 times, except the white one, would count as pervasive and severe, and therefore hostile. Because we all know that anyone not a white male is too fragile to handle hearing mean things even once./sarc
I don’t see how this is relevant. The judge didn’t apply a different standard to a white plaintiff than she would to a black one. At least not out loud. She would surely claim that she’d have treated a black plaintiff’s claims exactly the same way. “Severe” and “pervasive” are both subjective tests, and a judge can easily get them wrong. Either the appeals court will agree with her analysis or it won’t, but either way the Ames case shouldn’t affect it.
In a perverse sense, Judge Beetlestone is not wrong. Harassment of white men in positions of leadership or responsibility has become so pervasive over the last ten years that Penn State’s treatment of De Piero was not really extreme.
In a perfect world, there would be class action law suits in certain sectors (e.g. some universities) for damages due to unfair hiring practices, lost promotions, and long-term harassment of white men.
What is the most shocking thing to me on this story is Penn State’s attitude towards society and their total bias. They are not teaching, they are indoctrinating! Telling him Englsh is racist and mandating racist classes is so hostile it’s hard to imagine working there.
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