Legal View: Can employers require anti-racism training?

By Laura Brown
BridgeTower Media Newswires

Once a topic reserved for college classrooms, “critical race theory” has become something that seemingly everyone has an opinion on. For some, critical race theory is a source of great outrage, which has resulted in entire political campaigns built on promises to eradicate it. Almost 30 states have passed or might pass laws banning the teaching of critical race theory in schools. While the focus of this fury has been the purported radicalization of elementary school children, some have turned their attention to diversity training required by employers.

The question: Can employers legally require employees to take anti-racism training?

In the aftermath of George Floyd’s murder, companies across America — including some of the largest companies — issued statements condemning racism. As part of those statements, many of those corporations promised to change their organizational culture by including training on topics such as anti-racism. Anti-racism is the idea that challenging racism requires not merely being “not racist” but recognizing how structures and institutions uphold racial discrimination.

In September 2020, former President Donald Trump ended critical race theory training for federal agencies, prohibiting any discussions of “white privilege” in race-sensitivity training. Russell Vought, who served as director of Office of Management and Budget, alleged that the training “engender division and resentment within the federal workforce.”

In Minnesota, a father and son have filed EEOC charges of discrimination stemming from their employment at the Minnesota Security Hospital. The father, Joseph Norgren, worked in the hospital for 27 years before retiring in early 2021. Son Aaron Norgren has worked at the same hospital for more than eight years. Father and son identify as people of color, being part Native American. Joseph Norgren was subject to racial slurs and other discriminatory behavior due to his background.

Both, however, have objected to employee training that is based on critical race theory. Aaron Norgren claims that critical race theory “imparts that I as a person of color am oppressed and will always be oppressed because of my race and the structures and systems within the United States.” Father and son also reject the existence of nonbinary individuals, citing personal religious beliefs. In spite of this, they insist that they “never treated any DHS employee or patient differently.”

Joseph Norgren claims that he was instructed in August 2020 that he would need to complete four additional training courses beyond the workplace harassment training that he had already completed. One of the training courses was titled “How to be Anti-Racist” and employees were instructed to stop using the phrase “I can’t be a racist.” Although Norgren objected to this training, he was most opposed to a training course called “Understanding Gender Identity and Expression: Moving Beyond the Binary.” He attempted to get a religious exemption to participate, but the exemption was denied. Norgren argues that he was constructively discharged from his position on Jan. 6, 2021, when his employer created a hostile work environment. He said that his constitutional freedoms were infringed upon by being forced to take the course.

Aaron Norgren claims that he was also informed that he would have to take the additional training. Allegedly, other employees were able to take just two of the training courses but he was required to take all four. He, like his father, objected to taking the anti-racism and gender identity training and was denied an exemption. After he took the training, Norgren alleges that he was asked to retake them all because he completed them “too quickly.” He also alleged that he was denied taking a day off for bad weather after expressing his disagreement with the training.

Many companies have insisted that the training is necessary for workplaces. In 2020, the Society for Human Resource Management (SHRM) issued a report, “The Journey to Equity and Inclusion.” While SHRM President and CEO Johnny C. Taylor Jr. admitted that these discussions can be uncomfortable, he insisted that they were vital: “[B]y thoughtfully cultivating these discussions and cultivating these discussions and implementing what is learned, HR and other business leaders can guide our workplaces into a new era of honesty, respect, understanding and inclusion.”

It is not clear exactly what effect this training will have on organizations — whether they will, as some argue, sew division, or result in greater equality in the workplace. As Janice Gassam Asare, founder of BWG Business Solutions, wrote in a Jan. 4, 2022, Forbes article, “anti-racism training is a newer and more niche type of education that organizations are investing in. There is not enough evidence yet to assess the effectiveness of this type of training long term, since it is still quite novel.”

But having the training may help employers avoid lawsuits. In 1998, the U.S. Supreme Court ruled in Faragher v. City of Boca Raton that an employer is vicariously liable under Title VII for actionable discrimination caused by a supervisor. In that case, a lifeguard resigned after alleging that supervisors created a sexually hostile work environment through inappropriate physical conduct and comments of a sexual nature. Justice Souter wrote that the employer failed to exercise reasonable care to prevent the supervisors’ harassing conduct by failing to disseminate its policy against sexual harassment among beach employees.

Still, employers will want to carefully curate training and avoid obviously harmful training methods. In Hartman v. Pena (N.D. Ill. 1995), plaintiff was an air traffic controller who attended a “Cultural Diversity Workshop.” During the workshop, female attendees were directed to slap male attendees on the butt, and plaintiff alleged the attendees touched his genitals. After this, female attendees were asked to rank the size of each male’s genitals with the men in attendance. The court held that the seminar created a hostile work environment that was sufficient to establish a prima facie case.

There are not many current suits or charges stemming from these training courses, but given the great objection to critical race theory in other arenas, it is very likely that more cases will arise. For now, companies seem to largely endorse such training for their employees.