The Volokh Conspiracy
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State Employer's Requiring Employees to Watch "Antiracist"/"Gender Identity" Videos Isn't Unconstitutional Speech Compulsion
But plaintiff's claim that he was retaliated against for raising religious objections to the training, and discriminated against based on religion as to promotion, can go forward.
From Norgren v. Minn. Dep't of Human Servs., decided Thursday by the Eighth Circuit, in an opinion by Judge Ralph Erickson, joined by Judges Michael Melloy and Davis Stras:
We take the facts from [Aaron Norgren's complaint]…. Aaron, who continues to work at DHS, has served as a security counselor with the Forensic Mental Health Program for nine years….
[Aaron and his father, Joseph, who also worked at DHS, received an email] … instructing him to complete [online] workplace trainings titled, "How to be Antiracist (CRT Training)" and "Understanding Gender Identity and Expression: Moving Beyond the Binary." … Commissioner Harpstead also emailed employees that the trainings were necessary to foster "brave conversations" and "change … minds for life" and DHS Assistant Commissioner Karen McKinney told employees that "we need all of you to do this."
The Norgrens alleged that the trainings instructed employees to speak or refrain from speaking on certain political and ideological matters. For example, the trainings mandated a minute of silence for George Floyd. They also directed employees to stop using the phrase "I am not a racist" as a defense, to admit to a specific definition of the word "racist," to confess to racist policies they supported, and to accept that the United States is the root of racist ideas. The Norgrens alleged the gender identity training instructed them to refrain from telling others that their gender identities are wrong. The Norgrens opposed the racism training as violative of the traditional view of equality under Title VII, and they opposed the gender identity training as contrary to their sincerely held religious beliefs….
Aaron expressed opposition to both trainings to his direct supervisor Robert Schweisthal and to Joseph's supervisor Pherson. He … asked for an exemption from both trainings and was denied … with no right of appeal.
The court rejected the claims that the trainings involved impermissible speech compulsion:
Here, while the pleadings alleged that the trainings advanced expressive messages that the Norgrens objected to, the Norgrens failed to plausibly allege that Commissioner Harpstead compelled them to adopt those messages as their own speech.
There was no allegation that the Norgrens were forced to affirmatively agree with any of the statements in the trainings. There was no allegation that they were threatened with any kind of penalty if they did not observe the minute of silence for George Floyd during the training, if they continued using the phrase "I am not a racist" as a defense after the training, or if they expressed their countervailing viewpoints regarding racism or gender identity in the workplace.
The email directing the Norgrens to complete the trainings only told them to watch the videos to the end and then click the exit button. The allegation that Commissioner Harpstead intended the trainings to change minds for life does not by itself demonstrate the required compulsion.
I think that has to be right, on these facts: Government employers have to be able to require employees to watch various training videos or read training materials, and I doubt that courts can effectively sort ones that have undue ideological content from ones that don't. That is especially so because various kinds of training might have some content that some might view as ideological: Just to take one example, imagine incoming soldiers being required to read books or watch videos that aim to inculcate certain patriotic or professional norms, or for that matter to teach contestable interpretations of the laws of war.
But Aaron also alleged that he was denied an interview for a possible promotion, shortly after all this happened, and that this denial was in retaliation for his religious exemption request, and more generally was motivated by disapproval of his religious beliefs, to go forward; and the court allowed that claim to go forward:
"To establish a prima facie case of retaliation, an employee must show that he engaged in protected activity; he suffered a materially adverse action that would deter a reasonable employee from making a charge of employment discrimination; and there is a causal connection between the protected activity and the adverse action." … If the employee establishes a prima facie case at summary judgment or trial, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its action. If the employer meets this burden, the burden shifts back to the employee to provide evidence of pretext….
Regardless of whether Aaron satisfied the technical requirements of the qualifications, he alleged that he had worked at DHS for nine years and had been previously considered for positions with the same required qualifications in the past. Aaron alleged that he met the qualifications …, that he was declined an interview after he filed his EEOC charge, and that DHS deviated from its past practice in choosing not to interview him. His complaint is sufficient to raise a plausible inference of discrimination. His claim is further bolstered by the timing, as only three weeks elapsed between the protected conduct and the adverse action….
DHS's deviation from its past practice, the proximity between the protected activity and the adverse employment action, Aaron's strong employment record and his qualifications, and DHS's failure to offer him an interview despite his eligibility [also] give rise to an inference of religious discrimination. The district court gave too much weight to whether Aaron established the existence of similarly situated comparators because courts generally do not inquire about comparators until the "pretext stage" of the inquiry, which arises at summary judgment….
The court also rejected, on factual grounds, Joseph's claim that his work environment had become so intolerable that he was forced to quit; if you're interested, you can read about that in the opinion.
