In recent years, employer efforts in Diversity, Equity and Inclusion (“DEI”) have come under fire in both the political and legal landscapes.  In Young v. Colorado Dept. of Corrections et al., No. 23-1063 (10th Cir. Mar. 11, 2024), the Tenth Circuit considered, in part, whether the content of the Colorado Department of Corrections Equity Diversity and Inclusion training program (“EDI”) was so “laden with racial animus” that it pervasively altered the conditions of employment in violation of Title VII.

Plaintiff, Joshua Young (the “Plaintiff”), an employee of the Colorado Department of Corrections (the “Defendant”) claimed the mandatory EDI training promoted statements facially based on race, including, negative and demeaning generalizations about white individuals that harmed his ability to interact with co-workers and inmates. He claimed training materials, such as an Equity Continuum and concepts of black indigenous people of color “BIPOC,” “White Fragility,” and “White Exceptionalism” supported “treating people differently on the basis of race.” Defendant, the Colorado Department of Corrections (the “Defendant”) sought to dismiss the allegations as failing to “sufficiently plead the alleged harassment was severe or pervasive” enough to support a claim of a hostile work environment.

The district court dismissed the claims. On appeal, the Tenth Circuit Court of Appeals agreed, noting that to establish a hostile work environment, the Plaintiff must show:

1. Membership in a protected class;
2. Subjection to unwelcome harassment;
3. Harassment was due to race; and
4. The harassment was so severe or pervasive that it altered a term, condition, or privilege of his employment and created an abusive environment.

The court found that while Plaintiff had shown a plausible claim he was a member of a protected class and the training contained “objectively and subjectively harassing messaging” that “could promote racial discrimination and stereotypes in the workplace,” it was not sufficiently severe or pervasive enough alter the terms of employment and was not legally actionable harassment.

The court held that Plaintiff had not articulated facts to establish discriminatory conduct that was frequent and severe, physically threatening or humiliating (as opposed to an offensive utterance), or that the conduct unreasonably interfered with Plaintiff’s work performance. Further, Plaintiff had relayed the bulk of the harm occurred when he was exposed to content during the training itself rather than related conduct that showed racial animus had permeated the day-to-day operations of the workplace.

This case confirms the legal requirements to establish a claim of hostile work environment discrimination in the workplace but also highlights the difficulty employers can face when attempting to establish non-discrimination policies and training. With ramped-up federal enforcement against employer equity programs, it is important that employers are familiar with what could be considered a violation of anti-discrimination laws.  If you or your organization need assistance developing effective policies and training, contact Wiley Reber Law for legal advice that works.