White employees alleging harassment stemming from workplace DEI training will test the reach of a recent Supreme Court “reverse” bias ruling as their appeals seek to mark boundaries on anti-discrimination programs.
Three cases currently before federal appeals courts rely in part on the justices’ June ruling in Ames v. Ohio Department of Youth Services, which outlawed a standard requiring nonminorities to prove, as something extra, that their employer is the rare one that discriminates against the majority.
The cases challenge various workplace training programs, including instruction on “White privilege,” race-segregated sessions, and a video titled “White Teachers Are a Problem.”
The Justice Department backed one of the appeals, brought by Seattle municipal worker Joshua Diemert, saying there are reasons to believe a federal trial court judge rejected his harassment claim based “on a standard that is no longer good law.” Those reasons include a statement in the the lower court ruling that Diemert failed to “present that rare and unusual case,” which is language similar to the rare-and-unusual-employer or “background circumstances” test now banned by Ames, the DOJ told the US Court of Appeals for the Ninth Circuit.
But several employment attorneys cast doubt on whether the district court held Diemert to a heightened standard and said they aren’t convinced that the DOJ’s argument will move the needle. Instead they said the court used the traditional, separate standard for...
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