If public sector entities weren’t already fearful of investigation by the Trump administration for alleged discrimination against supposedly privileged employees, human resources managers across the western U.S. might have to start scrambling following a small but mighty ruling by the federal appeals court that oversees states from the Pacific to the Rockies.Seattle’s “race-conscious” training programs for municipal employees might violate Title VII of the Civil Rights Act, as well as the Washington Law Against Discrimination, by creating a “racially hostile work environment” for whites, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled this week.
It reinstated former city employee Joshua Diemert’s nearly four-year-old lawsuit for harassment and retaliation through Seattle’s Race and Social Justice Initiative, which is based on critical race theory, and cleared it for jury trial, finding he had “established a genuine issue of material fact” on whether Diemert’s treatment violated Title VII and WLAD.
The 10 incidents Diemert cites over a five-year period are “sufficiently numerous, frequent, and severe to create a triable issue as to the existence of a racially hostile work environment,” the judges said, comparing his case to an earlier 9th Circuit ruling for a Hispanic tradesperson who endured a white supervisor’s racial and personal slurs for six years.
The pervasiveness of CRT – the academic and legal argument that racism is part of everyday American society – isn’t unique to one Seattle department: Diemert’s claims mirror those about Seattle Public Schools and its county library system and prosecutor’s office.
The composition of the panel, in an appeals court with a narrow edge for Democratic nominees after a slew of appointments by President Trump, should worry HR managers in blue jurisdictions: The judges were nominated by Presidents Clinton, Obama and Biden.
The decision confirms “Title VII protects every employee from a racially hostile work environment, regardless of race,” said Diemert’s lawyer, Laura D’Agostino, with the Pacific Legal Foundation. “No one should have to endure years of racial hostility at work.”
“We are reviewing the decision and discussing potential next steps for the City,” Seattle City Attorney’s Office communications director Alan Pyke told Just the News, but did not answer two queries on whether it still uses the same or substantially similar training that formed the basis of Diemert’s claims.
Undercut by Supreme Court on higher standards for white plaintiffs
U.S. District Judge Jamal Whitehead, a Biden nominee and progressive favorite for his civil rights litigation in private practice, issued summary judgment to the city on all claims by Diemert last year after initially letting his claims go forward for equal protection violations and hostile work environment.
While race-based workplace discrimination is unlawful regardless of the plaintiff’s identity, “history and common sense tell us” that anti-majority instances of discrimination “are rare and unusual,” Whitehead said.
Diversity, equity and inclusion programs “are not by their very nature discriminatory against whites,” and Diemert simply “rejects” RSJI without alleging details sufficient to show its “objectively severe or pervasive” effect on him or whites in general, the judge said.
The Supreme Court kicked the stool out from Whitehead months later when it unanimously revived a heterosexual woman’s reverse discrimination lawsuit against her Ohio public employer for giving her expected promotion to a lesbian, allegedly based on sexual orientation.
The justices rejected a “background circumstances” requirement that majority-group plaintiffs put forth more evidence that their employer is “unusual” by discriminating against a majority. The Justice Department cited that precedent, known as Ames, three weeks later when it filed a brief supporting Diemert against Seattle.
The 9th Circuit panel pointedly cites Ames in explaining why Title VII makes no distinction between majority and minority groups.
It also quoted a district court ruling in a racial discrimination lawsuit by white professor Zack De Piero against Penn State Abingdon, now awaiting a ruling from the 3rd Circuit, that employee trainings with “a constant drumbeat of essentialist, deterministic, and negative language” about a particular race can bring federal liability on employers.
The panel upheld Judge Whitehead’s summary judgment on Diemert’s other claims, including intolerable working conditions that compelled him to resign in 2021, disparate treatment and retaliation from Seattle’s failure to investigate his claims and rejection of an extension for his medical leave, and that RSJI’s “affinity groups” by race “personally injured” him.
