A recent Second Circuit ruling has drawn renewed attention to the legal risks of mandatory diversity, equity, and inclusion (DEI) trainings—particularly the kind of “implicit bias” training that discusses race. The decision illuminates both the hazards and guardrails employers must navigate as courts and agencies rethink the boundaries of lawful DEI programming and consider the rise of reverse discrimination cases.
In Chislett v. New York City Department of Education, Leslie Chisett, a former executive director in a New York City Department of Education program, challenged the agency’s mandatory implicit bias training under 42 U.S.C. § 1983, alleging that the training itself created a racially hostile work environment. Chisett alleged and the Court found that the instructors has used had used “charged language” referring to “white culture” as “supremacist,” “toxic,” or “privileged.” Chisett was told that her “interest in excellence” reflected “white supremacy.” Moreover, the failure of management to intervene, despite complaints, further aggravated the risk.
While the Court held that implicit bias training is not per se unlawful, it ruled that under certain circumstances such training might cross the line into a hostile work environment, depending on how race is discussed. The Court partially allowed her case to continue, allowing the training‑based harassment claim to proceed to a jury trial. However, the Court declined to adopt rule banning anti‑bias training, but it signaled that training design matters: neutral phrasing, balanced instruction, and sensitivity to stereotyping are essential.
Legal Significance & Doctrinal Developments
- Expanding the Theory of Hostile Environment Claims in DEI Contexts
Historically, courts have been cautious about accepting claims that DEI or training programs constitute discrimination. The Chislett ruling, however, affirms that employees may frame DEI initiatives (or components thereof) as race‑based harassment, provided they can show the content was sufficiently inflammatory, stereotypical, or persistent.
This is especially meaningful because workers challenging DEI policies often are constrained by high proof thresholds and limited direct precedent. The Second Circuit’s reasoning offers a more robust factual pathway for courts to evaluate such claims.
- Intersection with EEOC and Title VII Enforcement
Although Chislett arises under Section 1983 (applicable to state and local actors), its reasoning has resonance in the Title VII arena. Conservative interest groups and plaintiffs may point to this decision as persuasive authority when arguing that DEI efforts have crossed into discriminatory territory. The decision is in line with emerging EEOC approaches and that plaintiffs will likely invoke it in DEI‑related enforcement actions under Title VII.
- Limits and High Bar Remain
The court reaffirmed that mere participation in a DEI training—even if flawed—does not automatically give rise to liability. To prevail, an employee must show that race was a motivating factor in an adverse employment action (or that severe/pervasive harassment occurred). The Chislett case did not succeed on claims of demotion or constructive discharge (which were held in favor of the employer).
Practical Implications for Employers & DEI Practitioners
Given this evolving legal landscape, organizations should revisit their approach to implicit bias and DEI training programs. Below are several prudential tips:
- Design Training with Neutrality, Balance, and Context
- Permit Opt-Outs, Alternatives, or Accommodations
- Monitor Complaints and Act Promptly
- Document Deliberative Process
- Review Training Materials Periodically
- Vet Facilitators and Trainers
The Chislett decision is likely to be cited in future “reverse discrimination” litigation and may influence EEOC guidance. As plaintiffs and advocacy groups increasingly challenge DEI programs, courts will likely be asked to delineate clearer rules regarding when DEI efforts cross the line into discrimination or harassment.
For employees, DEI trainings can be used as evidence in discrimination cases, namely “reverse discrimination” cases. For employers, the lesson is not to abandon DEI efforts, but to proceed thoughtfully. Pechman Law Group has represented clients in high profile reverse discrimination cases.
If you have questions about DEI training in the workplace, please contact one of the attorneys at Pechman Law Group: 212-583-9500.
