The Volokh Conspiracy
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Race Discrimination/Harassment Lawsuit Against Seattle Related to Its "Race and Social Justice Initiative" Thrown Out
From Judge Jamal Whitehead's opinion today in Deimert v. City of Seattle(W.D. Wash.):
It is unlawful for an employer to discriminate against any employee because of their race. Recognizing the stubborn and pernicious effect of racism against minorities, many employers have adopted Diversity, Equity, and Inclusion ("D.E.I.") initiatives to combat discrimination and harassment in the workplace.
Plaintiff Joshua Diemert, a white man, alleges that his employer, Defendant City of Seattle ("City"), discriminated against him because of his race. He argues that the City's Race and Social Justice Initiative ("RSJI")—the City's D.E.I. program—created a hostile-work environment by "infusing race into all City functions" and "reduc[ing] [him] to an embodiment of his race." He also alleges the City retaliated against him when he opposed the supposed harassment.
Controlling precedent makes clear that the legal protections against workplace discrimination apply with equal force regardless of the plaintiff's race. Yet we must acknowledge what history and common sense tell us: instances of discrimination against the majority are rare and unusual. Diemert does not present that rare and unusual case here. Contrary to his claims, D.E.I. programs aimed at addressing racial inequalities against Black people and other minorities are not by their very nature discriminatory against whites. And while it is apparent that Diemert personally rejects the RSJI, as is his right, the details he alleges about its discriminatory effect are not so objectively severe or pervasive as to create a racially hostile-work environment against white people in general or him in particular. The same is true about the sweeping claims Diemert makes about his co-workers' and supervisors' alleged race-based conduct, which lack specificity and factual support. Put plainly, more is required of Diemert under the law to demonstrate an unlawful hostile-work environment.
Because Diemert's claims do not stack up against the time-honored tests for proving unlawful employment discrimination and retaliation, the Court must grant the City's summary judgment motion and dismiss Diemert's case.
The opinion is over 12,000 words long, and I can't fully analyze it now; you can read it its entirety here. But here's a short excerpt that rejects Diemert's claim that the initiative created a racially hostile environment for him:
Diemert argues that the "City's [RSJI] … la[id] the foundation for all the racial harassment … [he] would face." It's clear that Diemert found RSJI messaging incorrect and offensive: he testified that he believes white privilege does not exist and is an "incorrect stereotype"; that it is offensive to state that the United States was built on a system of white supremacy; and that it is offensive to state that it is not appropriate to be color-blind when it comes to race. But the Court rejects the notion that the RSJI and programs like it are inherently racist, as Diemert suggests.
The claim that efforts to address racism in the workplace—such as D.E.I. initiatives—are themselves racist presents a striking paradox. According to their proponents, these programs aim to promote fairness and inclusion by acknowledging and addressing racial disparities—they are designed to ensure that all individuals have access to opportunities. Critics, however, argue that explicitly focusing on race or addressing racial inequalities perpetuates division and unfairness. For them, the cure is worse than the disease. The tension between these views underscores the complexity employers face when talking about race and equity.
While such conversations may prompt discomfort or spark debate, they do not necessarily violate anti-discrimination laws. Multiple courts in recent years have reached the same conclusion. Quite the opposite, many courts have held that anti-discrimination trainings play a vital role in preventing workplace discrimination. The Supreme Court has held that Title VII's "primary objective was a prophylactic one." Trainings, courts have recognized, further Title VII's primary goal. Indeed, in line with Title VII's "basic policies of encouraging forethought by employers," the Supreme Court crafted the Faragher-Ellerth affirmative defense, allowing employers to avoid liability for supervisory harassment by taking a proactive approach to harassment prevention, including by implementing training. These training programs are needed because racial discrimination and inequality are present-day problems, not problems of the distant past. Against this backdrop, the real threat to equality in the workplace is not the effort to expose and address racial inequalities, but a resistance to doing so.
Because the Court finds that D.E.I. and anti-discrimination trainings are not per se unlawful, Diemert's belief that such trainings constitute an illegal employment practice is viable only if he shows that the RSJI trainings—in content, implementation, or context—harassed him personally on account of his race. Diemert makes sweeping allegations about the effect of the RSJI, but as explained below, he is short on details about how it transformed his workplace into a racially hostile environment for him and other white people.
For instance, Diemert argues, "[t]he City designed the RSJI as a policy and system that would 'lead with race,' 'center People of Color,' 'de-center whiteness,' and 'prioritize the leadership of Black, Indigenous, and People of Color.'" He takes issue with a definition of "white supremacy" culture provided in RSJI materials, which states among other things that "[t]he culture of white supremacy perpetuates the belief and legitimizes the practice of treating people of color as inferior and white people as superior." He argues that he was not the only white employee who found the RSJI trainings to be "divisive" to the extent they "focus on our differences vs. on our similarities[.]" Beyond these general critiques, he provides no other details about the content of the RSJI trainings….
RSJI trainings no doubt contained statements about race. But exposure to material that discusses race does not by itself create an unlawful hostile-work environment. "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 Diemert equates acknowledgement of institutionalized racism and implicit bias—concepts recognized by many courts— with personal attacks. Not so. Passive exposure to these concepts cannot reasonably be construed as a threat to Diemert's safety or well-being or an impediment to his job. Put differently, these trainings in no way interfered with the terms and conditions of Diemert's employment. Comparing diversity trainings that use terms like "'racial bias,' 'white man's privilege,' and 'white man's guilt,' and address topics such as systemic racism, oppression, and intersectionality … to true hostile work environments … trivializes the freedom protected by [antidiscrimination laws]."
On this record, a reasonable juror could not find that the RSJI created an objectively hostile-work environment. Whether comments made by Diemert's co- workers and supervisors created an actionable hostile-work environment is a different inquiry that the Court explores below….
Diemert alleges that comments made by his co-workers during the RSJI trainings and at other times subjected him to a hostile-work environment. Diemert points to a collection of statements over the years:
- HSD employees expressed their opinion that white people do not experience racism.
- During a training in 2019, an RSJI trainer stated, "the real truth is that all white people are cannibals[,]" "racism is in white people's DNA[,]" and "white people are like the devil."
- Co-workers "attacked" him about a comment he made in response to a post about CRT on the HSD SharePoint page.
- In 2019 and 2020, Said referred to Diemert as a "colonist" and claimed he was to "blame for all injustices in the United States." Dkt, No. 69 ¶ 47.
- In February 2020, Said "physically accosted [Diemert and] got in [his] face," and Said accused Diemert of reporting him for fraud because of "white privilege."
Whether this conduct amounts to severe or pervasive racial harassment from which a reasonable juror could conclude Diemert's work environment was objectively hostile depends on the circumstances. This is because "'[n]ot every insult or harassing comment will constitute a hostile work environment.'" "'[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)' will not trigger Title VII's protections." "The standard for judging hostility is meant to 'ensure that Title VII does not become a 'general civility code.'" And "properly applied, this standard 'will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'"
Diemert's allegations fall short of the mark. The Ninth Circuit has deemed much harsher comments and conduct not enough to create a hostile-work environment. See e.g., id. (no hostile-work environment when employer told male plaintiff that he was "in a female job related environment," suggested plaintiff should "look for other employment in cooking in the future," and told plaintiff he "might want to do something with cooking for work."); Henry v. Regents of the Univ. of Cal., 644 F. App'x 787, 788–89 (9th Cir. 2016) (no hostile-work environment when "noose incident" was deemed an "isolated incident[ ]" and when plaintiff failed to show "racial motive behind the noose … or that the noose was directed at him personally."); Harris v. Sutton Motor Sales & RV Consignments Corp., 406 F. App'x 181, 182–83 (9th Cir. 2010) (no hostile-work environment when plaintiff was called a "nigger" two or three times in the same year); Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 638 (9th Cir. 2003), as amended (Jan. 2, 2004) (no hostile-work environment when plaintiff was accused of having a "typical Hispanic macho attitude" and told he should take a job in the field because "Hispanics do good in the field."); Manatt v. Bank of Am., NA, 339 F.3d 792, 795 (9th Cir. 2003) (no hostile- work environment when Asian plaintiff overheard her coworkers laughing and saying "China Man," pulling "their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians," and referring to plaintiff as "China woman."); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1107 (9th Cir. 2000) (no hostile-work environment when a supervisor called female employees "bitches," "castrating bitches," "Madonnas," "histrionics," and "Regina" in the plaintiff's presence.); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031–36 (9th Cir. 1990) (no hostile-work environment when employer posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were Latino). The objective severity of the comments alleged by Diemert pales in comparison to that of the statements and conduct in these cases.
The context in which statements are made also matters. At least some of the comments that Diemert takes issue with were made during RSJI trainings. Racially charged comments made in this setting, while still potentially harmful, are better framed as attempts to express perspectives or challenge ideas within the training's scope. Such comments made in the presence of a skilled facilitator can be addressed constructively, turning the moment into a learning opportunity, not a personal attack. This is very different than comments made, for example, on a production room floor that serve no educational purpose.
Even viewed cumulatively, comments about Diemert being a "colonist" or "white people being cannibals" were too infrequent to surpass the type of "joking or teasing [the Ninth Circuit] [has] held to be part of the ordinary tribulations of the workplace." …
For a different result, though of course on different facts, see Judge Wendy Beetlestone's opinion in De Piero v. Penn. State Univ. (E.D. Pa. 2024); for Judge Whitehead's earlier opinion in allowing Diemert's claim to go forward at an earlier stage of the proceedings, see here.
