DEI Training and Title VII

Abstract

Diversity initiatives of any kind are now under attack, as the Trump Administration has upended courts’ interpretation of discrimination, rescinded EO 11246, and threatened cancellation of or actually canceled the federal contracts of businesses and universities that even mention DEI initiatives.

In Young v. Colorado Department of Corrections, the plaintiff alleged that the department’s DEI employee training subjected him to a racially hostile work environment in violation of Title VII. In upholding the district court’s decision to dismiss Young’s case, the Tenth Circuit held that the DEI training did not subject Young to harassment that was sufficiently “severe or pervasive” to establish a racially hostile work environment as required under Title VII, nor did Young establish that he suffered harassing treatment from coworkers that met this standard. However, the court left open the possibility that DEI training that used race-based rhetoric could meet the standard for harassment under Title VII, saying that “[i]f not already at the destination, this type of race-based rhetoric is well on the way to arriving at objectively and subjectively harassing messaging.” Further, the Tenth Circuit postulated that DEI training “could promote racial discrimination and stereotypes within the workplace” and “encourage racial preferences in hiring, firing, and promotion decisions.”

Courts to date, including the Tenth Circuit, have not found DEI training to be discriminatory. Although the Tenth Circuit went further than other courts in suggesting that DEI training could itself promote employment discrimination, it only speculated—without providing support for—this possibility. By examining the legal environment governing workplace harassment and social science research on the reach and impact of DEI training on employment outcomes, this Article concludes that, for now, it is unlikely that DEI training will be found to be unlawful employment discrimination.

Keywords: DEI, harassment, implicit bias, anti-bias training, Title VII

JEL Classification: J00, K00