The Volokh Conspiracy
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White Multicultural Student Services Administrator's Race Discrimination Claim Against U Wisconsin Can Go Forward
From yesterday's decision by Judge James Peterson (W.D. Wisc.) in Hoffman v. Bd of Regents:
Hoffman previously worked in the Blugold Beginnings office at the university, which provides support to low-income, first-generation, and other underrepresented students. In 2022, Blugold Beginnings merged with the Office of Multicultural Affairs to become the Multicultural Student Services department.
After Hoffman was appointed interim director of the new department, students, faculty, and staff objected to her appointment because she was white. Hoffman [sues] …, contending that the university … demoted Hoffman from her leadership position, … forced Hoffman to transfer to a different department, and then retaliated in various ways against Hoffman for filing a racial discrimination complaint….
In late January 2022, Diaz {the vice chancellor of Equity, Diversity, Inclusion, and Student Affairs} asked Hoffman to serve as interim director of the new MSS department and Hoffman accepted. Hoffman's appointment generated backlash from students. At open houses on February 14 and February 18, students asked Diaz why she "hired a white woman as the interim director" and questioned whether Diaz "personally fe[lt] that white staff can do as effective a job as a person of color, within a space for people of color." The student senate also released a resolution on February 28 expressing "concerns over placing white-identifying individuals in positions of interim leadership for major [equity, diversity, and inclusion] offices."
Some faculty and staff also expressed disapproval with Hoffman's appointment as interim director. In a private meeting with Diaz on February 11, non-white faculty members expressed concerns about the university placing white staff in positions formerly held by non-white staff. (It's disputed whether the faculty knew at this point that Hoffman was to be interim director of MSS.) After the student senate resolution was released, student coordinator Jensen said in a staff meeting that she agreed with the resolution. She also told Hoffman that Hoffman's white identity was "an issue" for Jensen. Hoffman says that staff members also "participat[ed] with the students" at the open houses, but Hoffman did not identify any specific statements made by staff members….
Diaz decided to remove Hoffman as interim director of the MSS department and make her the assistant director instead. In early spring 2022, Hoffman began using the assistant director title on a working basis. She also received overload salary payments for performing duties consistent with the assistant director role, including supervising new MSS staff and chairing a search committee to appoint a new MSS coordinator. In early June, Diaz initiated a "request to fill" application with the HR department to formalize Hoffman's position as assistant director of MSS….
Hoffman continued to experience opposition to her role in the MSS department. At open houses throughout the spring and summer, attendees criticized the appointment of white people to leadership positions in the MSS department. In May, … a native American professor[] emailed O'Halloran expressing concern that Hoffman and [a] MSS administrative assistant …, "two white women … who have overpowering voices," were chairing the search committee for four new positions in the MSS department.
A group called "UWEC BIPOC Alumni" posted criticism about the MSS department's staffing on social media: the group did not mention Hoffman by name, but they said that the department was "overwhelmingly white" and that "positions of decision-making authority [were being] strategically replaced by white folks." Some faculty and staff "liked" the alumni group's posts on social media. Over 100 faculty members also signed an open letter expressing concerns about the "marginalization" of students served by the equity, diversity, and inclusion department, the resignation of staff who served those students, and the "disregard for collaboration and shared governance" in the department….
The court allowed Hoffman's discrimination claims to proceed to trial as to her demotion from interim MSS director to assistant director:
Hoffman asserts that in January 2022, Diaz asked Hoffman to be interim director of the new MSS department and Hoffman accepted. But in early March, Diaz demoted her to assistant director because of the backlash from faculty, staff, and students who did not want a white person leading the department….
Hoffman lost job responsibilities when Diaz demoted her from the interim director role, namely supervisory responsibilities over student coordinators Maggie Jensen, Vaj Fue Lee, and Jacqueline Navarez. A reasonable jury could find that losing these responsibilities was an identifiable harm to her employment.
As for the causation element, the university contends that Diaz demoted Hoffman not because of discriminatory animus but to "shield [Hoffman] from the negative reactions of others." The university argues that Hoffman cannot show that the demotion occurred because of her race if the decisionmaker, Diaz, didn't hold racial animus. But this argument mischaracterizes the standard for a racial discrimination claim. Plaintiffs in discrimination cases frequently rely on evidence of a decisionmaker's racial animus to prove that an adverse action was caused by the plaintiff's race, but animus is not an element of a discrimination claim. Plaintiff must show only that the decisionmaker took an adverse action "because of" plaintiff's race. A well-intended but patronizing effort to shield an employee from racial hostility is enough to show causation….
Hoffman has adduced evidence that Diaz demoted her from the interim director position because "people … had questioned whether a white person" should be leading the MSS department. That's enough for a reasonable jury to find that Diaz would have made a different decision had Hoffman not been white.
And the court allowed Hoffman's discrimination and retaliation claims to proceed to trial as to her transfer from the MSS department to the SSS department. The court rejected a third discrimination claim, however, as well as her hostile environment harassment claim.
