The Ninth Circuit’s decision in Diemert v. City of Seattle highlights some of the potential risks associated with workplace diversity initiatives, specifically, whether and under what circumstances they arguably foster conditions that contribute to unlawful race discrimination or harassment.

Reversing the district court’s summary judgment decision, the Ninth Circuit held that a jury should decide whether Diemert’s allegations of race-based comments and conduct, some of which were made in context with the employer’s diversity initiatives, were sufficiently severe or pervasive to support a race-based hostile work environment claim under Title VII and the Washington Law Against Discrimination.

Notably, the Court affirmed the award of summary judgment to the City on Diemert’s constructive discharge claim, cementing the heightened standard required to establish an adverse action when an employee resigns.

Factual Background

Diemert was employed by the City of Seattle’s Human Services Department. While still employed with the City, he challenged the City’s Race and Social Justice Initiative (“RSJI”), a program designed to grapple with racial inequities in the City government. Diemert alleged that the RSJI, coupled with comments and actions by his supervisors and coworkers, created an environment that was hostile to white employees like him. For example, Diemert alleged that:

• He was subjected to repeated comments linking him to racial privilege, oppression, or historical injustices because he was white.
• He was discouraged from pursuing advancement opportunities in favor of persons of color.
• He heard race-related statements during RSJI trainings that he viewed as demeaning toward white employees.

Diemert ultimately resigned and later filed a lawsuit against the City alleging harassment, discrimination, and retaliation claims, as well as a claim that the City denied him Equal Protection under the 14th Amendment to the Constitution.

Hostile Work Environment Claim

The Ninth Circuit reversed the district court’s grant of summary judgment on Diemert’s hostile work environment claim. The Court approached its analysis through the standard elements required: (1) that the employee was subjected to verbal or physical conduct because of their race; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of their employment and create an abusive work environment.

As is common in hostile work environment cases, the decision turned on the third prong: whether the conduct was sufficiently “severe or pervasive.” While the Ninth Circuit rejected the notion that diversity and anti-bias training programs are inherently unlawful, it held that “race-conscious training programs may violate Title VII when they create a racially hostile work environment.”

Viewing the evidence in the light most favorable to Diemert, the Court concluded that the alleged incidents were sufficiently severe or pervasive to create a factual dispute for a jury. The Court focused primarily on the “pervasive” prong, distinguishing previous case law where even highly offensive workplace remarks and incidents occurred only once or twice, as compared with Diemert’s allegations, which allegedly occurred multiple times over several years.

A Special Note On Constructive Discharge

The Ninth Circuit upheld summary judgment on Diemert’s other claims, including constructive discharge, retaliation, and disparate treatment. In upholding the dismissal of the constructive discharge claim, the Ninth Circuit reaffirmed that an employee “must demonstrate not only the severe or pervasive harassment necessary to support a hostile work environment claim but also that the abusive working environment became so intolerable that [an employee’s] resignation qualified as a fitting response.” The Court focused on the events close in time to Diemert’s resignation and determined that they were not sufficient to establish constructive discharge.

Key Takeaways

To be clear, the Ninth Circuit did not rule that workplace diversity initiatives were unlawful. Indeed, the Court noted expressly that “[w]orkplace training programs designed to address racial barriers are not inherently discriminatory, and nothing in Title VII prohibits employers from either discussing historical and ongoing discrimination against persons of color or seeking to address such discrimination.”

However, the decision is a good reminder that employers should ensure that such training and workplace discussions do not devolve into racial generalizations, stereotyping, or conduct that could be perceived as targeting employees because of their race or other protected classification.