New Court Ruling Sheds Light on When Workplace “Antiracism” or DEI Training Creates Illegal Reverse Discrimination

“Antiracism” training has been increasingly adopted in the workplace since at least 2020, often as part of employers’ Diversity, Equity and Inclusion (“DEI”) initiatives. As I discussed in a prior post, antiracism/DEI training is very different than the kind of race-neutral anti-discrimination training that was once standard.

Traditional anti-discrimination training was aimed at all employees with the intent of eradicating harassing or discriminatory conduct towards any protected class, whether race, gender, sexual orientation, or the like. Typical antiracism/DEI training, in contrast, singles out just one racial class of employees – whites – as the source of all invidious discrimination against non-whites.

The ideological underpinnings of antiracism/DEI is Critical Race Theory (“CRT”). The gist of CRT is that whites, by accident of their birth and skin color, are inherently “privileged” and inherently racist, since they supposedly benefit from the “structural racism” baked into society against persons of color. At an antiracist employee training session, it’s not at all uncommon to hear that:

• Whites are automatically privileged and racist against non-whites, regardless of any white person’s individual history or conduct; and
• Non-whites are automatically oppressed and incapable of racism, regardless of any non-white person’s individual history or conduct.

This is race essentialism at its finest and, as I explained previously, I believe it amounts to illegal workplace discrimination. But because of the relative newness of antiracism/DEI training, there’s relatively fewer case precedents to rely upon in fighting it. Courts are just beginning to weigh in on antiracism’s legality in published opinions.

A recent decision, De Piero v. Pennsylvania State University, et al., provides some much-needed guidance as to when antiracist/DEI initiatives and training creates a claim of a hostile work environment under state and federal law. Generally speaking, this type of claim requires a plaintiff to allege:

• That he suffered discrimination and harassment due his membership in a protected class (in this case, race);
• That the discrimination and harassment was so severe or pervasive as to detrimentally affect him; and
• That a reasonable person of the plaintiff’s race would also be detrimentally affected under similar circumstances.

Both federal statutes (Title VII of the Civil Rights Act of 1964 and Section 1981) and state law (in De Piero’s case, The Pennsylvania Human Relations Act) require that the discrimination and harassment in a hostile work environment claim be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. But what does that mean in the context of an antiracism claim? Let’s take a look at the De Piero case to find out.

Frequent, Required, and Specific are Key

De Piero was a seasoned and well-reviewed Professor of English and Composition at Penn State Abington. He sued Penn State for, among other claims, a hostile work environment due to his race, Caucasian, stemming from antiracism training and initiatives mandated by the English Department beginning around 2019. Penn State sought to dismiss De Piero’s suit as a whole for failure to state a claim. However, after reviewing the facts alleged in De Piero’s complaint, a judge for the Eastern District of Pennsylvania held that he stated a plausible claim for hostile work environment, allowing his suit to move forward in litigation.

In her decision, the judge ruled that the discrimination and harassment alleged by De Piero was severe and pervasive enough to withstand Penn State’s motion to dismiss. De Piero’s complaint contains extensive and detailed allegations and may be read here. However, the judge zeroed in on the following:

• In June of 2020, De Piero was required to attend a “Conversation on Racial Climate,” during which Penn’s Assistant Vice Provost for Educational Equity, Alina Wong, led the faculty in a breathing exercise in which she singled out whites and non-blacks to hold their breath in longer than their colleagues. She stated that whites and non-blacks were “privileged identities” and needed to “feel the pain” suffered by George Floyd and caused by systemic racism.
• In the weeks that followed, De Piero was informed by a colleague that resistance to wearing masks to prevent the spread of COVID-19 was “more likely to happen in classrooms taught by women and people of color” and to be “led by white males.”
• De Piero received an email addressed to all Penn State employees from Aneesha Smith, Director of DEI and self-described “Queer, Christian, Cisgender woman of color.” Ms. Smith stated that “Black and Brown people are calling on white people” to “stop being afraid of your own internalized white supremacy.” She further instructed white people to “stop talking”, yet also hold other white Penn employees “accountable.”
• In August of 2020, De Piero’s Department Chair and direct supervisor, Liliana Naydan, sent an email to all writing faculty espousing “Black Linguistic Justice”. Specifically, Ms. Naydan directed faculty to take measures to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” A second August email sent by Ms. Naydan asserted that “reverse racism isn’t racism.”
• In October of 2020, De Piero was required to attend a professional development meeting led by Ms. Naydan and Assistant Teaching Professor Grace Lee-Amuzie. The pair proceeded to give examples of what they considered racist comments by professors to students. Only comments made by white professors were used as examples; these included a white professor asking about a student’s native language or country of origin.
• Also in October of 2020, De Piero received repeat emails from a Department colleague urging him to watch a video training titled “White Teachers Are a Problem.” In the video a race activist, Asao Inoue, assailed his white colleagues as “the problem” and claimed that “white English kills people of color.”
• In November of 2020, De Piero’s interim division supervisor emailed all faculty to attend an “Arts and Humanities as Activism event” featuring Dr. Aja Martinez. Dr. Martinez advocated antiracism and Critical Race Theory, and condemned “race neutrality, equal opportunity, color blindness and merit.” According to Dr. Martinez, traditional scholarly standards such as objectivity were tools of “white elites” protecting their white supremacy. Department Chair Naydan followed up with emails endorsing the incorporation of Dr. Martinez’s form of antiracism into departmental teaching.
• In January of 2021, De Piero had to attend an “Antiracist pedagogy” meeting, during which Department Chair Naydan endorsed grading on the basis of race – in other words, applying more lenient grading standards to non-white students.
• De Piero reported the aforesaid discrimination and harassment to Penn State through the school’s Bias Report mechanism in the Spring of 2021. In September of 2021, he met with the Associate Director of Penn State Affirmative Action regarding his report. She told him: “There is a problem with the white race,” and that he should continue attending antiracist programming “until you get it.”
• In October of 2021, De Piero attended another mandatory training titled “White Instructors Confront White Privilege in Their Classrooms.” During the training, Department Chair Naydan presented material accusing white faculty of “unwittingly reproducing racist discourses and practices in our classrooms.”

So, some key take-aways.

First, De Piero’s allegations of bias were FREQUENT.

Keep in mind that these are the more egregious, “standout” allegations the judge chose to single out from De Piero’s complaint. As is obvious from the foregoing, and was certainly obvious to the judge, the discriminatory and harassing conduct directed at De Piero was not an occasional, one-off occurrence. Indeed, the judge herself described it as a “constant drumbeat.” This certainly helped satisfy the legal requirement that a racially hostile work environment be “severe” and/or “pervasive.”

Second, De Piero’s allegations involved MANDATORY or UNAVOIDABLE exposure to bias.

Importantly, De Piero was required by his Department Chair and/or Penn State admin to attend the meetings and trainings characterizing white faculty as inherently racist. He had no ability to “opt-out.” Moreover, the “constant drumbeat” of these meetings and trainings, combined with the steady barrage of emails and comments from colleagues, made such racism an unavoidable part of working in the English department. Penn State effectively made it a condition of his employment to be subjected to bias based upon his race. Again, this helped satisfy the legal requirement of “severity” and “pervasiveness” of harassment, such that his working conditions were negatively “altered”.

Third, De Piero’s allegations involved SPECIFIC and EXPLICIT instances of race ESSENTIALISM.

In allowing De Piero’s hostile work environment claim to move forward, the judge stated:

To be clear, discussing in an educational environment the influence of racism on our society does not necessarily violate federal law. In allowing De Piero’s hostile work environment claim to proceed, the Court does not contemplate that it is, or should be, the norm to maintain a workplace dogmatically committed to race-blindness at all costs . . . Training on concepts such as “white privilege”, “white fragility”, implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment.

. . . 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 (emphasis added).

Thus, the judge was unwilling to call out Critical Race Theory for what it is: reverse racism. Yet in the very next breath, the judge held that De Piero stated a claim for hostile work environment because his allegations specified bias against whites that was “essentialist, deterministic, and negative.”

In reading her opinion, I very much wondered if the judge truly understood that Critical Race Theory IS race essentialism and determinism. Indeed, while De Piero alleged that Penn State negatively characterized whites as inherently racist, this is in perfect keeping with CRT.

Regardless, the lesson here is that any plaintiff hoping to challenge antiracism in the workplace needs to allege specific and explicit instances of race essentialism, preferably supported by documentation. De Piero backed his allegations with emails, training materials, speech excerpts and the like, all of which automatically equated his status as a white male with racism and intolerance, regardless of De Piero’s personal beliefs and conduct. Any would-be plaintiffs would do well to likewise keep careful records. Bias is tough to refute when it’s documented.

If you’ve been subjected to antiracism/DEI workplace training and initiatives that you believe to be discriminatory, I would be happy to speak to you regarding the legal ramifications and your available options. Please call my office for a free consultation.