Equal Protection Project Amicus Brief: DEI Training Can Constitute “Hostile Work Environment”

Equal Protection Project Amicus Brief: DEI Training Can Constitute “Hostile Work Environment”

You might recall that last month the Equal Protection Project (EPP) filed an amicus curiae, or “friend-of-the-court”, brief in the Ninth Circuit federal Court of Appeals in a case out of Washington State called Diemert v. City of Seattle.

That case involved a Seattle City social worker, Joshua Diemert, who happened to be White, and who was forced to sit through a relentless schedule of anti-White, outright discriminatory DEI training sessions as part of the City of Seattle’s “Race and Social Justice Initiative” (RSJI). When he reported that City policy encouraged employees to “lead with race” and divided them into “white oppressors” and “BIPOC oppressed,” he was told, repeatedly, that “white people can’t experience racial discrimination.”

Diemert then sued the City of Seattle, with the Pacific Legal Foundation’s help. Diemert argued that the RSJI and the harassment he suffered as a result of it constituted the establishment of a “hostile work environment” in violation of Title VII, which prohibits racial discrimination in the workplace. Although the term “hostile work environment” does not appear in the text of Title VII, federal courts have interpreted Title VII as allowing a cause of action (to let you sue) for really egregious workplace behavior that is race-related.

Unfortunately, Diemert lost on summary judgment, meaning that the City of Seattle won the case without the need to go to trial. So Joshua Diemert appealed to the Ninth Circuit, which led to EPP filing its amicus brief, which you can review here.

Our three main arguments in our amicus brief were as follows:

I. The federal district court, in its summary judgment order, made some factually incorrect statements (such as that racial discrimination against “majority” parties, such as White people, is “rare and unusual” — obviously wrong since it is now the norm in vast swaths of society (as evidenced by EPP filing over 100 civil rights complaints against over 500 individual programs that invariably discriminate against White, Asian, or other “majority” people), and held some legally bogus positions that we thought warranted bringing to the Court’s attention.

II. DEI training can constitute or at least contribute to a hostile work environment. We gave evidence from several comprehensive studies that show that DEI training, like the heinous stuff Diemert was forced to repeatedly forced to attend, causes harm to those who must go through it. We then summarized: “The DEI [training] system described [in the studies cited] is exactly what Appellant Joshua Diemert was forced to endure. Far from being benign and light-years from being beneficial, the DEI trainings required by the City created a hostile work environment that Diemert was required to endure as a loyal employee, and that system of destructive training violated Title VII.”

III. Our last argument was that Diemert met the federal court requirements for showing that a hostile work environment existed, namely that the harassment he suffered from the RSJI was “severe” and/or “pervasive.”

We are eagerly awaiting the completion of the briefing in the Diemert case and follow-on oral argument, and we are really hoping that Joshua Diemert wins.

Which leads us to our newest amicus brief, filed in the federal Third Circuit court of appeals, in a case out of Pennsylvania called Zack De Piero v. Penn State University. This case involves a Penn State professor who, like Diemert, had to endure a heinous barrage of training, email, and other harassment. We have covered De Piero’s case here at Legal Insurrection three times before, in Penn State Prof Sues School for Allegedly ‘Discriminating Against Him for Being White’, Federal Judge Rules DEI/CRT Trainings and Policies Can Violate Federal Law, and Penn State Professor Loses Hostile Work Environment Case.

As you can see from the titles, De Piero sued Penn State in federal court, and scored an initial victory after federal district (trial-level) court Judge Wendy Beetlestone DENIED Penn State’s motion to dismiss, which had basically argued that DEI training cannot, as a matter of law, cause or contribute to a “hostile work environment.” The judge, an Obama appointee, disagreed, saying that “the way these conversations [about race] are carried out in the workplace matters: When employers talk about race—any race [i.e. including White people]—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.” [emphasis added].

Unfortunately, about a year later, that same judge, said Penn State wins and that De Piero wasn’t subjected to a hostile work environment.

So De Piero appealed to the federal Third Circuit court of appeals, and on Wednesday, August 20, EPP filed an amicus brief supporting Professor De Piero, which you can review here.

This time, we moved the “DEI Training Can Cause a Hostile Work Environment” argument to position #1. We thought this was important because the judge had excused the harassment De Piero suffered because much of it was done in formal workshops or other training sessions, but look at a small part of what De Piero allegedly suffered (from our brief – thanks to EPP Senior Attorney Tim Snowball for putting this list together):

• An official SharePoint platform containing “anti-racist” lessons with statements like “Whites are unconsciously invested in racism.”
• A mass e-mail instructing White people to “feel terrible” about race relations.
• Providing a link to an article that claimed “schools…were created to uphold white supremacy” and “whiteness is [coded] for privilege and power.”
• Demanding that all faculty embed “equity pedagogy” into their teaching and curricula.
• Extending race-based benefits to non-White students.
• A Faculty Senate resolution seeking to “reward [black] faculty members [for their alleged invisible labor of being black].”
• Academic and administrative bodies issuing statements expressing regret over the fact that so many employees were White.
• An assignment to watch a video entitled “White Teachers Are a Problem.”
• Being advised that White teachers would still “perpetuate White language supremacy in [their] classrooms because [they] are White and stand in front of students,” even if they adopted “anti-racist” pedagogy.
• Trainings based on the idea that White writing teachers can never take credit for their accomplishments, because they are always the result of unearned racial “privilege.”

Under these teachings, “White” students, too, were discredited, their achievements due only to their race.

If that isn’t a “constant drumbeat,” I don’t know what is.

We then covered the studies that we touched on in Diemert to show that there is some serious research going on that says that DEI training CAN REALLY HARM WHITE PEOPLE who are subjected to it. From our brief, quoting a study out of Rutgers University:

This research raises critical questions about how many individuals, as a result of these programs, have experienced undue duress, social ostracization, or even termination of employment. . . . This suggests the potential for a far broader scope of harm than previously considered, underscoring the urgency of rigorous evaluation of antioppressive, DEI interventions to identify unintended and damaging consequences, and, ultimately, to prevent them. [emphasis in brief].

By the way, you can review the Rutgers study here.

Our second argument was that the De Piero court improperly, and heavily, relied on the Diemert case as supporting its decision, but Diemert, as we explained earlier in this post, is really wrong and so undermines, rather than bolsters, the De Piero summary judgment order.

Third, we argued, as we had in Diemert, that Zack De Piero really did meet the federal court requirements for hostile work environment in that the harassment he suffered was “severe and/or/pervasive.”

Like in Diemert, we are really hoping Professor De Piero wins his case, not only for his sake but also so people begin to understand fully how destructive and evil DEI really is.

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