Plaintiff may litigate anti-white bias in the workplace influenced by the City's diversity training

The Court of Appeals has held that a white woman who was subjected to racial comments arising from her public employer's diversity training may sue the New York City Department of Education for a hostile work environment. This is among the few cases where a white plaintiff has enough evidence to proceed on such a claim.

The case is Chislett v. New York City Department of Education, decided on September 25. Plaintiff, an educator with the Department of Education, attended mandatory implicit bias training, which focused on white supremacy and related topics. The Court says a rational jury may find that "racist comments were expressed during bias trainings" and that this bias spilled into everyday workplace interactions as "employees expressed terminology from the trainings at [plaintiff]." Viewing the record in plaintiff's favor (a necessary process in reviewing the propriety of summary judgment), the Court notes that, following this training, coworkers criticized her by stating, i.e., she was making "race-based judgments," could "not be trusted," benefited from white privilege, and that she was racist and "white and fragile." 

The district court rejected plaintiff's racial harassment claim, but the Court of Appeals finds she has a case. The Second Circuit (Leval, Nardini and Bianco) holds the evidence supports a finding that the Department has a custom or policy of racial harassment against white employees, sufficient to support a Monell claim, because the racially hostile work environment may have been "the product of a municipal policy." This is a unique holding, as "policy and practice" claims often fail under the stringent legal standards articulated by the Supreme Court. The pattern of racist comments that followed the training permits the finding that this took place because of the training sessions. While some of the anti-white comments were directed toward other employees, the Court notes that "discriminatory conduct not directly targeted at or spoken to an individual but purposely taking place in her presence can nevertheless transform her work environment into a hostile or abusive one." 

While the conduct of implicit bias trainings is not per se racist, the Court says, "What matters here is the way the trainings were conducted," and employers risk liability "when employment trainings discuss any race with a constant drumbeat of essentialist, deterministic and negative language about a particular race." This is the first time the Second Circuit has said this, borrowing language from a district court ruling in Pennsylvania. When the Court of Appeals relies on an out-of-Circuit district court ruling, you know the Court means business about this issue. What hurts the City in this case was its failure to remedy the problem when plaintiff lodged a complaint about the offensive workplace statements, often dismissing her concerns outright, and the "tolerant awareness" of supervisors, suggesting they were "acquiescing in such abuse."

While the city argued that "many of the identified statements should not form the basis of a hostile work environment claim because they occurred in the context of discussions about combating discrimination," the Court says "the fact that the purpose of the sessions was to combat race discrimination does not excuse the alleged presence of race discrimination in the conduct of the sessions." At the same time, the Court says "we do not suggest that calling someone racist by itself constitutes racial discrimination or forms the basis of a hostile work environment claim."