Are Employer “White Privilege” Workshops Legal Under Anti-Discrimination Employment Laws?

In recent years, more and more employers have required their employees to attend mandatory training sessions, speaker presentations, and workshops on the concept of “white privilege”: a tenet of Critical Race Theory that maintains race discrimination against non-whites is “systemic” in all aspects of American life.  Some proponents of the white privilege theory argue that, because racism is “systemic” and all-pervasive, all white persons are racist, either consciously or unconsciously, and regardless of their individual actions and behavior towards non-whites.

I have spent more than 25 years practicing plaintiff’s employment litigation.  To put it bluntly, I am astonished to see so many companies – often at the urging of their HR departments! – requiring their workers to undergo training in which they are told that one’s skin color is determinative as to whether one is a racial bigot.  

In my opinion, this broad and negative stereotyping of employees based solely upon race runs afoul of both state and federal anti-discrimination laws.  Specifically, I believe “white privilege” employee education creates a “hostile work environment” on the basis of race, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964 (“Title VII”).

But what does the governing caselaw say about the matter?

The fact that there are scant records of any lawsuits involving employee sensitivity workshops speaks to the relative newness of this form of training.  It also suggests that many employees are fearful of protesting or criticizing this training, as they believe it may result in their demotion, discipline, or even termination.

Nonetheless, recent communications from the U.S. Commission on Civil Rights, as well as certain Title VII cases, provide guidance as to when employee “white privilege” workshops may amount to unlawful discrimination.

The City of Seattle Training and Response by the U.S. Commission on Civil Rights

In July 2020, The City of Seattle conducted a training session solely for white employees, entitled “Internalized Racial Superiority for White People.”  Documents released from the session indicated that attendees were told that whites have “internalized racism,” defined as “the internalization of the racist stereotypes, values, images, and ideologies perpetuated by the white dominant society about one’s racial group.”  According to the training documents, some of the tell-tale signs of “Internalized Racial Superiority” are:

“Perfectionism, individualism, imposition, arrogance, paternalism, silence, intellectualization, control, violence, comfort, appropriation, cognitive dissonance, objectivity, anti-blackness, feeling oneself to be the “true” victim, either/or and categorical thinking (separating, seeing distinctions and not connections).”

In response, by letter dated August 31, 2020, US Civil Rights Commissioner Peter Kirsanow, speaking for himself personally and not on behalf of the entire Commission as a whole, began by noting the bare fact of restricting anti-bias training to white employees was probably illegal:

“This training likely violated Title VII’s prohibition against segregating employees by race.  As a refresher, Title VII states:

It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

There’s no exception in Title VII that says, ‘unless you have good intentions.’ Rather, it provides that you may not segregate an individual by race in any way which would tend to adversely affect that person’s status as an employee.”

But how were the white employees “adversely affected” by simply attending a workshop? one might ask.

Commissioner Kirsanow anticipated this argument, maintaining that the examples of “Internalized Racial Superiority” given in the training materials, and their blanket attribution to whites, could not help but adversely impact not only white employees but their non-white counterparts as well:

 “There is no way that separating white employees from other employees and telling them that this grab-bag of characteristics are inherent to white people and are bad (and therefore, that they have these characteristics and are bad) does not adversely affect their status in the eyes of their co-workers.

The obverse also is true.  This juvenile grouping of terms necessarily stereotypes non-whites too. (emphasis added)”

Moreover, the training session materials directed the white attendees to “take action to redistribute resources, change who’s in power, and alter institutions” in favor of non-whites.  As Kirsanow stated:

“A white employee could very reasonably conclude that this means that white employees should not seek promotions in deference to ‘people of color,’ or that they are unlikely to receive such promotions if sought . . .  this certainly could affect an employee’s desire to remain in her position at all.”

Court Holds That Employer-Sponsored “Cultural Diversity Workshops” Can Amount to Hostile Work Environment Harassment Under Title VII

As stated above, there is a dearth of discrimination cases alleging harassment based upon employee sensitivity training.  However, the case of Hartman v. Pena, 914 F. Supp. 225 (N.D. Ill. 1995) shows that such training if conducted in a harassing and biased fashion, can sustain a discrimination claim under Title VII.

In Hartman, the plaintiff was an air traffic controller employed by the Federal Aviation Authority (FAA).  At the request of the FAA, he attended a “Cultural Diversity Workshop” on sexual harassment.  The workshop presenters directed the female attendees to stand in a “reverse gauntlet” formation of two lines while the male attendees passed in between them; the record showed the female attendees derided the male attendees’ appearance as they passed and gave them “little slaps on the butt”.  The plaintiff alleged that he refused to participate, but was then pressured by the presenters and attendees until he acquiesced.  When he “walked the gauntlet”, he alleged the female attendees touched his genitals.  He also alleged that, during a workshop discussion, the attendees were asked to associate each male attendee with a drawing of a penis in “varying states of arousal”; the attendees rated the plaintiff as a “small, flaccid penis.”

The plaintiff sued the FAA for hostile work environment sexual harassment under Title VII, and the FAA try to dispose of his case via a pre-trial motion.  In holding that his claim could proceed to trial, the district court found that taking the plaintiff’s allegations as true, the conduct he suffered was both subjectively and objectively hostile.  Importantly, the court relied on the fact that: 

“The CDW was not a singular occurrence. It was a mandatory three-day program which employees not only had to attend but also in which they had to actively take part . . .”

Court Holds Employer’s Disparate Treatment of Employee Based Upon Her Perceived Association With “White Privilege” May Sustain a Title VII Claim

In Devine v. Pittsburgh Board of Education (W.D. Pa. 2013 and 2015), the plaintiff was a white female teacher who sued her school employer for race discrimination under Title VII.  In her complaint, the plaintiff alleged her supervisor, the school principal (also a white female), terminated her due to her race, as the principal applied a different performance standard to teachers she associated with “white privilege.” Because the plaintiff alleged that black teachers were treated disparately and more leniently by the principal (as they lacked “white privilege”), the court denied the school’s motion to dismiss and allowed the plaintiff’s claim to proceed.

Later in the litigation, after the parties had collected and submitted evidence into the record, the school once again tried to dismiss the plaintiff’s claim via a pre-trial motion.  The court rejected the plaintiff’s argument that the principal’s comment that her “life’s mission is to stamp out white privilege” was direct evidence of race discrimination against her since the comment was made out of the context of the workplace.  However, because the plaintiff submitted evidence that black teachers were not terminated for equal or worse performance issues, the court ruled that a jury should decide whether the plaintiff had shown indirect evidence of racial discrimination.  The court thus allowed her claim to go to trial.

Summary:  Some Factors Making “White Privilege” Workshops Illegal Under Title VII

Based on all the foregoing, an employer-sponsored workshop on “white privilege” may be determined to violate federal anti-discrimination law if it involves:

• Segregation on the Basis of Race.  Anti-bias training that is restricted to only white employees, as opposed to all employees, regardless of race, is discriminatory on its face.  It evidences the “disparate treatment” of white employees as compared to their non-white counterparts.

• Mandatory Attendance on the Basis of Race. Required “White Privilege” training sessions that do not allow employees to opt-out may be, per the Hartman v. Pena decision, evidence of an employer’s hostility towards whites.

• Stereotyping of Qualities or Characteristics on the Basis of Race.  Categorizing such human qualities as “perfectionism” and “objectivity” (in other words, traits usually seen by employers as positives), as well as “anti-blackness” and “violence” (traits usually seen by employers as negatives) as solely belonging to “whites” not only ignores the humanity of all workers,  it is offensive race-based stereotyping.  Moreover, it is offensive to both whites and non-whites (as it insidiously implies, for example, that non-whites are incapable of, say, an employer-preferred trait like “objectivity”).

• Debasement or Humiliation on the Basis of Race.  Simply put, any workshop or training session that seeks to convince attendees that they are, on the basis of their skin color alone, automatically and irredeemably racist against another racial group, will likely be held in violation of Title VII and related state and federal anti-discrimination law.

Steps for Impacted Employees in New Jersey

If you are an employee in New Jersey who has been subjected to “white privilege” training of the type discussed above, please know that the anti-discrimination laws prohibit your employer from retaliating against you for complaining that such training is racially discriminatory and/or creates a hostile work environment harassment based upon race.  That means your employer may not fire, demote, discipline, or otherwise adversely impact your working conditions because of your complaint.

If your employer subjects you to such training,

• Retain all training handouts, materials, and documentation, including photographs, for your records.
• If you choose to protest such training, do so in writing – preferably, an email or letter sent to your direct supervisor and all the way up the chain of command, including HR.  Be sure to state that you reasonably believe that your employer’s “white privilege” training is racially discriminatory and creates an unlawful hostile work environment on the basis of race.
• If you suffer an adverse employment action after submitting your complaint (such as, say, being placed on a bogus Performance Improvement Plan), contact an employment attorney for advice.

If you have questions regarding the legality of your employer’s sensitivity training, how to proceed if you are required to undergo, or have already undergone such training, please call our offices today for a free consultation.