Politics

Employers’ Talking “About Race—Any Race—With a Constant Drumbeat of Essentialist, Deterministic, and Negative Language” Risks Racial Harassment Liability

An excerpt from De Piero v. Penn. State. Univ., decided Thursday by Judge Wendy Beetlestone (E.D. Pa.) (there are also other legal theories that the court rejects, which you can see discussed in the full opinion):

{De Piero{, a white man,} [argues] that his department’s discussions of “antiracism,” “white supremacy,” “white privilege,” and other concepts relating to discussions of race on campus, all of which “repeatedly singl[ed] out and demean[ed] faculty members on the basis of race,” subjected him to a hostile work environment.} De Piero … began working at Penn State Abington as a non-tenure-track Assistant Teaching Professor of English and Composition in 2018. Penn State Abington holds itself out as “the most diverse campus within” the Penn State system “and the only majority minority campus.” …

Title VII (along with the PHRA and Section 1981) renders employers liable for harassment that is “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.” … Whether a series of alleged incidents constitutes pervasive harassment is a circumstance-specific question: the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance” are all relevant to whether the discrimination the employee suffered was sufficiently “severe” or “pervasive.” …

[De Piero alleges that he] was obligated to attend conferences or trainings that discussed racial issues in essentialist and deterministic terms—ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race—in June 2020, October 2020, November 2020, January 2021, and October 2021. His Amended Complaint contains at least some discussion of the content of each such meeting [bullets added -EV]:

in June 2020, in the aftermath of the murder of George Floyd, “Wong [Assistant Vice Provost for Educational Equity] expressed her intention to cause Penn State’s white faculty to ‘feel the pain’ that [he] endured;” in a “breathing exercise,” Wong told “White and non-Black people of color to hold [their breath] just a little longer—to feel the pain;” that October, Naydan, [Chair of the English Department and] De Piero’s supervisor, co-led a professional development meeting on multiculturalism that included “supposed examples of ‘racist’ comments” where every hypothetical perpetrator was white; the following month included an event called “Arts and Humanities as Activism,” where De Piero alleges the facilitator “condemn[ed] white people for no other reason than they spoke or were simply present while being ‘white,'” including by “condemn[ing] … ‘white elites’ and ‘white self-interest;'” Naydan endorsed that training’s message repeatedly; in January 2021, at an “antiracism pedagogy” meeting, Naydan spoke of race conscious grading; and, finally, in October of that year, Naydan and her co-facilitator led another training, which included an excerpt that “accused white faculty” of ‘unwittingly reproduc[ing] racist discourses and practices in our classroom.” It was, according to Naydan’s co-facilitator, “about a group.”

De Piero also documents emails and interpersonal interactions from this time period, including

a comment by a colleague “that resistance to wearing masks ‘is … more likely to be led by white males,'” an email from Smith “instructing Penn State’s white employees to ‘feel terrible,'” messages from Naydan including one encouraging him to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy,” and multiple emails urging him to watch a video titled “White Teachers Are a Problem.”

And when De Piero went to Borges [Associate Director of Penn State’s Affirmative Action Office] to air his concerns, she told him that “[t]here is a problem with the white race.” De Piero simply did not “get it,” so, according to Borges, he should continue to attend more workshops and trainings until the message sunk in.

Taken together, these allegations plausibly amount to “pervasive” harassment that, at least on a motion to dismiss, passes muster. De Piero’s case looks less like Young or other similar cases where the plaintiff failed to plead the specificity and pervasiveness necessary to state a hostile work environment claim, and is closer to the plausible claim analyzed in Diemert v. City of Seattle, 2023 WL 5530009, at *1-4 (W.D. Wash. Aug. 28, 2023), in which a white plaintiff alleged that he had to attend anti-racism trainings that segregated employees based on race and declared “that all white people have white privilege and are racist” and that “white people are like the devil” and “racism is in white people’s DNA.” True, some of the allegations in Diemert, including one instance where a defendant “chest bumped” the plaintiff and “got in his face,” go beyond what De Piero says happened here, but in both cases, “it is clear on the face of [the] complaint that, beyond any problems [the plaintiff] may have had with [the trainings], he alleges his co-workers and supervisors verbally … assaulted him because of his race. And that he was the target of potentially offensive comments and other abusive actions, also because of his race.” “Whether there is any merit to his claims is an inquiry for another day, but for now, he has stated a plausible claim for a hostile-work environment based on race ….”

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. To do so would “blink [at] both history and reality in ways too numerous to count.” 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. Indeed, this is particularly so in an educational institution. And placing an added emphasis on these issues in the aftermath of very real instances of racialized violence like the murder of George Floyd does not violate Title VII, Section 1981, or the PHRA. 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….

The court also notes,

Penn State points to a few out-of-circuit district court cases that reject hostile work environment claims brought by white plaintiffs relating to anti-racism trainings like the ones De Piero attended. Young v. Colo. Dep’t of Corr. (D. Colo. 2023); Shannon v. Cherry Creek Sch. Dist. (D. Colo. 2022); Vitt v. City of Cincinnati (S.D. Ohio 2002), aff’d (6th Cir. 2004). Quite apart from the fact that none of these cases has precedential value, none is persuasive. Two of these cases were resolved after discovery on motions for summary judgment, so their analysis is not particularly relevant to resolving a case at this early stage in litigation.

And the third is distinguishable. In Young, the plaintiff alleged that facilitators of a series of mandatory trainings “made sweeping negative generalizations regarding individuals who are white” and encouraged him to review additional reading materials that “contain[ed] outright support for forms of invidious race discrimination masquerading as ‘anti-racist’ literature.” The district court dismissed the hostile work environment claim because the plaintiff had failed to “actually allege any specific facts describing the nature, contents, or frequency of the mandatory training” or identify which additional reading materials he reviewed. De Piero’s allegations are more specific….

I’m generally pretty skeptical of imposing “hostile work environment harassment” liability on employers based on their or their employees’ speech to the workplace at large (as opposed to speech targeted to a particular employee); see here for more. But while some judges have shared these First Amendment concerns, other judges (and other government actors) seem to be fine with such speech restrictions. And the court in this case is certainly correct that hostile environment harassment claims may be brought by whites as much as by non-whites.

Samantha K. Harris (Allen Harris PLLC) represents plaintiff.

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