Diversity, equity, and inclusion (DEI) initiatives have grown more prevalent in recent years (yes, this is stating the obvious). These efforts have their detractors. A Google search of DEI will reveal sample DEI initiatives, anti-racism trainings, and the efforts some have taken to criticize and stop such efforts. Penn State University’s Abington campus, for example, is being sued by a former faculty member who alleges that he was subjected to a hostile work environment because of the University’s anti-racism trainings and the school’s response when he voiced his concerns. De Piero v. Pennsylvania State University, et al., No. 23-2281 (E.D. Pa. Jan. 11, 2024)
Zack De Piero was a writing professor at Penn State University’s Abington campus, the only majority minority campus in the Penn State system.
De Piero alleged in his lawsuit that Penn State officials sanctioned multiple professional development meetings that, in his view, included inappropriate comments on race-related issues, and that University officials issued improper mandates regarding said matters. Among the things De Piero took issue with were:
- Defendants instructed that he incorporate race into grading.
- His supervisor emailed him and others that “racist structures are quite real in assessment . . . . For me, the racism is in the results if the results draw a color line.”
- During a Zoom discussion titled “Conversation on Racial Climate,” a University administrator “led the faculty in a breathing exercise in which she instructed the ‘White and non-Black people of color to hold it just a little longer—to feel the pain.’”
- A colleague told him that opposition to masks during the COVID-19 pandemic was “more likely” in classes taught by women and people of color, and that the resistance was led by white males.
- An administrator emailed all employees “calling on white people” to “feel terrible” about their “own internalized white supremacy” and to “hold other white people accountable.”
- White faculty were always used as the bad actor in discussions of problematic situations.
- The University used a training video called “White Teachers Are a Problem,” and the school mandated “presentation and dialogue about critical race theory and antiracism” that attacked “race neutrality, equal opportunity, objectivity, colorblindness, and merit” and condemned “white self-interest.”
In April 2021, De Piero informed the University that he felt harassed by the “‘antiracist’ dogma” and requested that there be no further anti-racism training. He also filed a harassment complaint with the Pennsylvania Human Relations Commission and the Penn State Affirmative Action Office.
An AAO representative met with De Piero and told him “[t]here is a problem with the white race,” De Piero should “broaden [his] perspective,” and he should continue attending the anti-racism sessions until he understood the point of the conversations.
After additional training in 2021, two individuals filed a bullying and harassment complaint against De Piero. While meeting with him during the investigation, the AAO representative explained that the content of the trainings was protected speech and De Piero should be mindful of his “intimidating body language.” The AAO investigator concluded that De Piero had bullied and harassed colleagues. The University subsequently issued De Piero a “Performance Expectations Notice” stating that his conduct in connection with the race-related trainings was unbecoming “of a faculty member” and continued conduct could lead to disciplinary action.
When his next annual evaluation occurred, De Piero was rated lower than in years past and there were specific references to De Piero’s interactions during the trainings that did not align with University values.
De Piero quit and filed suit, alleging race discrimination and hostile work environment (including constructive discharge) under Titles VI and VII of the Civil Rights Act of 1964 and First Amendment retaliation, among other claims.
A constructive discharge occurs when an employer has allowed working conditions to be so intolerable “that a reasonable person would have felt compelled to resign.” De Piero alleged that the events described above left him no choice but to resign.
The court, accepting De Piero’s allegations as true (as it must on a motion to dismiss) concluded that there was no constructive discharge. Some of the bases for his constructive discharge complaint occurred years earlier and, therefore, were not related to his resignation in 2022. Other of the reasons were not the type of conduct that supports a viable constructive discharge claim — there were no threats of termination or change in terms and conditions of employment that could be interpreted as suggesting he resign from the University.
The court was more favorable regarding De Piero’s hostile work environment claim. The court denied the Defendants’ motion to dismiss because De Piero specifically alleged that white employees were singled out in the trainings.
While the court permitted De Piero’s harassment claim to proceed, it recognized the importance of race-related conversations:
discussing in an educational environment the influence of racism on our society does not necessarily violate federal law. In allowing De Piero’s hostile work environment claim to proceed, the Court does not contemplate that it is, or should be, the norm to maintain a workplace dogmatically committed to race-blindness at all costs. To do so would “blink [at] both history and reality in ways too numerous to count.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 385 (2023) (Jackson, J., dissenting). 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. Indeed, this is particularly so in an educational institution. And placing an added emphasis on these issues in the aftermath of very real instances of racialized violence like the murder of George Floyd does not violate Title VII, Section 1981, or the PHRA. But the way these conversations are carried out in the workplace matters . . . .
On the latter point, employers implementing race-related discussions and DEI initiatives should devise their programs to avoid singling out any particular group and using absolute terms in order to mitigate against potential employment law claims. Properly structured programs have significant value and, when done correctly, can promote understanding and accomplishment of DEI objectives.