Is “Anti-Racism” Employee Training Legal?

Some months ago, I published a blog post questioning the legality of so-called “white privilege” employee training. Such training, also referred to as “Anti-Racism” training, is a far cry from the anti-discrimination training employers used to require of workers. Old-school anti-discrimination training was aimed at fostering a race neutral workplace, in keeping with the express language and intent of state and federal anti-discrimination law. As such, it was designed to educate workers of the illegality and impropriety of making employment decisions, or of treating workers disparately, based on race.

“Anti-Racism” training, on the other hand, is a totally different beast. Anti-Racism training not only turns the goal of a race-neutral workplace on its head, it guts that goal entirely.

Since publishing my original post, I’ve received numerous calls from employees questioning the legality of the Anti-Racism training their employer required them to undergo. Such employees predominantly work in education and academia, healthcare, and the non-profit sector. Through consultations, I’ve had occasion to review many hours of Anti-Racism workshop audio, and hundreds of pages of supporting handouts, exercises, and required readings.

My opinion upon reviewing these materials is that Anti-Racism training plainly amounts to illegal workplace discrimination and/or harassment on the basis of race (and very often religion). Here’s why:

1.  Anti-Racism training identifies a sole racial class – Whites – as the source of racism in America.

State and federal anti-discrimination law makes this kind of invidious race-based stereotyping illegal at work. Those who believe in this kind of bias are welcome to discuss and debate it outside their place of employment.

Now, Anti-Racism advocates (who are paid very handsomely) know full well that it’s illegal for an employer to negatively stereotype employees on the basis of any race. Anti-Racism advocates know full well that state and federal law prohibits all race discrimination in the workplace, with no exceptions for discrimination against Whites or any other group. And they know full well that the language of the anti-discrimination law means what it says.

So they attempt to get around the law with a rhetorical trick. They profess not to castigate “Whites”, but only “Whiteness” and “White Privilege”, defined as benefits and advantages that flow to Whites due to the “systemic” oppression of BIPOC persons. Through the sleight-of-hand of “Whiteness” and “White Privilege”, Anti-Racism advocates state that White employees are automatically, inherently, and per se racist against non-Whites, regardless of their personal actions and intent. An individual White person may be employed by an organization that serves non-White populations, work productively along non-White colleagues, or have a non-White spouse with whom he or she shares bi-racial children. To the Anti-Racist, these personal actions evidencing a lack of racial bias are irrelevant. The bare fact that the employee is White means that he or she is “guilty” of blindly participating in the greater “systemic” subjugation of non-Whites.

I cannot emphasize this point enough: Anti-Racists are race essentialists. They engage in gross stereotyping based solely upon employees’ membership in a racial class.

Indeed, I have spoken to an instructor who dedicated years to teaching racially diverse students at underperforming city schools. He then took a position with one of America’s best-known and most prestigious colleges. Under the guise of Anti-Racism, his employer informed him that, despite his stellar performance and reviews, his “Whiteness” was a problem and a liability for his department. Incredibly, HR informed him not to take the racial attack personally, stating in effect: “It’s not about you. It’s about Whiteness.” (Oddly enough, HR didn’t call in “Whiteness” to sit down and participate in that meeting.).

The Anti-Racism advocates think they are being clever. They’re not. I challenge anyone who thinks wholesale critiques of “Whiteness” are legal within the workplace to defend employer critiques of “Blackness”, “Hispanic-ness,” or “Asian-ness.” It can’t be done, for the simple and obvious reason that the law prohibits blanket stereotyping on the basis of race.

2.  Anti-Racism training states that non-Whites are incapable of any form of racism.

In another form of illegal stereotyping and harassment, Anti-Racism maintains that non-White employees are incapable of racism towards not only White employees, but employees of any race. Over and over again, the training materials I’ve reviewed define “racism” as “institutional power” that denies resources to non-Whites in favor of Whites (notice once more how Anti-Racism theory refuses to consider the actions and intent of individuals). Because non-Whites hold zero “power” in America, Anti-Racists argue, non-Whites cannot be racist – only “prejudiced,” “ignorant” or “misinformed.”

This means that, per Anti-Racism, a Hispanic employee who calls a Black employee the n-word is not racist. Likewise, a Black employee who mocks an Asian employee by speaking in an offensive Asian accent or using Asian-specific slurs is not racist. I could give further examples but I’m sure you get the point.

This position is laughable. I’ve practiced employment law for decades, representing both management and employees. I can assure you, without question, that over my career I have observed racial animus between just about every racial group there is. And I can also assure you that federal and state anti-discrimination law doesn’t excuse racism in the workplace just because it’s committed by a non-White employee. That employers are using Anti-Racism training to suggest otherwise is, for lack of a better word, insane.

3.  Anti-Racism training invidiously stereotypes non-Whites as helpless and unable to advance on their own merits, without the help of Whites.

While Anti-Racism training slurs White employees as a class, it doesn’t treat non-White employees any better. The training materials I’ve reviewed characterize non-Whites as automatically and inherently subjugated as a racial class across all institutions, including their place of employment. Anti-Racism theory insists this is so, despite the skills, intelligence, initiative, or other positive attributes an individual non-White employee brings to work.

In fact, many workshops maintain that certain positive attributes valued by employers – such as “logical reasoning”, “grammar”, and “being on-time” – are in reality signs of “Whiteness” and “White Privilege.” As such, workshop presenters argue that non-White employees who are, for example, logical, grammatical, and punctual, have merely “absorbed Whiteness” in order to survive “structural racism.” The unspoken assumption here is that, left to their own devices and freed from the expectations of “Whiteness”, these non-White employees would be irrational, perpetually late, and writing communications riddled with errors.

That is a very, very ugly race-based stereotype which I believe to be illegal. Likewise for the second race-based stereotype Anti-Racism training levels at non-White employees: that they are helpless and will never advance within the workplace without the active assistance of White employees. The trainings I’ve reviewed repeatedly emphasize that non-Whites will not be hired, promoted, or appointed to leadership positions until Whites “step back”, “do the work” or “get out of the way.” In other words, non-Whites are incapable of competing based upon their own efforts and excellence. Instead, they’re doomed to fail without the self-sacrificing intervention of White Saviors.

Again, that is a very, very ugly race-based stereotype and I would be happy to challenge its legality on behalf of a non-White employee.

4.  Anti-Racism training calls for making hiring, retention, promotion, and other employment decisions based upon race.

In the Anti-Racism workshop audio I’ve reviewed, workshop presenters often bemoan the “Whiteness” of the employer’s workforce. Presenters have gone so far as to claim that every job granted to a White employee is a job denied to a BIPOC employee, characterizing hiring as a zero-sum race game. Presenters – including company HR managers and even CEOs – have expressed the need to purposefully hire, retain and promote employees based on their BIPOC status.

Of course, this goal is not always stated so explicitly. Often it is couched in terms of “increasing the complexity” of the workforce, “redistributing resources” in the name of racial “equity”, or “transforming” the workforce to “reflect” the demographics of the client base. But whether stated explicitly or vaguely, these directives are usually delivered during a speech or talk – never documented in writing.

There’s a good reason for that: the law prohibits race-based employment decisions. So employers – and their Anti-Racism aiders and abettors – studiously avoid creating evidence that they are using race as a motivating, if not the primary, factor in their decision-making.

Presenting a Complaint

If your employer has subjected you to the foregoing brand of Anti-Racism training, you have the right to complain and protest what you believe to be illegal race-based discrimination and harassment. I recommend the following course of action.

1)  Document Your Anti-Racism Training. Retain all handouts and required readings. Take screenshots of relevant PowerPoint slides or company internal social media posts regarding the training, especially those containing statements that are race-based.

Audio cell phone recordings of workshops are valuable as presenters often state things they’d never commit to writing. However, to avoid engaging in illegality, make sure your workplace is a “one-party” consent state before recording. All states except for 12 are one-party states. The remaining 12 (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Nevada, Pennsylvania, and Washington) are two-party consent states. In those states, all parties to the recording must give consent for it to be legal.

2)  Consult with an attorney. A lawyer specializing in employment discrimination can review your case, assess its relative strengths and weaknesses, and advise you on the potential risks. He or she can also advise you as to how to formally complain to HR and upper management about discriminatory Anti-Racism training.

Please note the following factors, all of which are very common in Anti-Racism training, potentially strengthen and support any claim of discrimination. If present, you should mention them to your attorney and identify them with specificity in your formal complaint:

Equating Your Religion With “White Supremacy.” Several of the Anti-Racism training materials I reviewed, in no uncertain terms, stated that Christianity is a tool, sign, and/or embodiment of “White Supremacy.” Make no mistake: this kind of invidious stereotyping based on faith is illegal in the workplace and gives rise to a second cause of action.

Enforcing a “Hierarchy of Oppression” That Ranks Your Sexual Orientation or Other Protected Class Below Race. Several of the Anti-Racism training programs I reviewed expressly stated that other forms of discrimination, such as discrimination based on sexual orientation or disability, are not to be taken as seriously as discrimination against BIPOC persons. However, this kind of “hierarchy of oppression” does not exist in the anti-discrimination laws. Instead, all “protected classes”, whether race, sexual orientation, disability, or otherwise, are equally shielded from workplace discrimination and harassment.

Segregating Employees By Race. If your employer’s Anti-Racism training separates White from non-White employees, it may be further persuasive evidence of illegal workplace discrimination and harassment.

Anti-Racism training has received scathing criticism from politicians, academics, pundits, and legal professionals. Nonetheless, and despite its dubious legality, its popularity persists with some employers, particularly those located in urban enclaves in coastal states. If you believe your employer’s mandatory Anti-Racism training amounts to illegal race-based discrimination and harassment, call my offices today for a free consultation. I would be happy to hear you out.