Implicit Bias Training Can Lead To A Race-Based Hostile Work Environment

The U.S. Court of Appeals for the Second Circuit sent a warning to employers last week: while implicit bias trainings are not inherently discriminatory, employers should ensure that such trainings are conducted in a manner that does not stereotype, denigrate, or create a hostile environment for any protected group.

The case is Chislett v. New York City Department of Education (DOE).

The court vacated summary judgment for the DOE on the hostile work environment claim, finding genuine disputes of material fact as to whether the hostile environment was the product of a municipal policy or custom.

Let’s dig in.

The Record

The Second Circuit identified several factors and types of conduct that, taken together, could allow a reasonable jury to find that Leslie Chislett experienced a hostile work environment. These included the following:

• Repeated negative generalizations and stereotypes about “white culture” during implicit trainings where instructors and materials described “white culture” as “supremacist,” “toxic,” “entitled,” “defensive,” “paternalistic,” “power hoarding,” and “privileged” as well as slides and discussions that repeatedly attributed negative traits to “white values”;

• Physical segregation and singling out based on race, including exercises where participants were physically lined up according to their “white privilege”;

• Direct and public accusations of racism and “white privilege” by her colleagues and subordinates, often in response to routine supervisory actions. For example, one colleague told Chislett that her “interest in excellence was perfectionism and consistent with white supremacy.”

When Chislett complained, repeatedly, to her supervisors and HR, her complaints fell on deaf ears.

In fact, supervisors dismissed Chislett’s concerns.

The Second Circuit’s Decision

The court found that Chislett presented sufficient evidence for a reasonable jury to conclude that the conduct she experienced was “severe or pervasive” enough to alter her working conditions and create an abusive environment.

This included repeated negative generalizations about “white culture,” physical segregation by race during trainings, and frequent racialized comments in the workplace.

The court emphasized that the conduct was not isolated but continuous, with supervisors and colleagues making or tolerating racially charged remarks and failing to intervene despite Chislett’s repeated complaints.

Does This Mean DEI or Implicit Bias Trainings Are Unlawful?

No. The court distinguished between the mere existence of DEI or implicit bias trainings and the manner in which they are conducted.

It noted that such trainings are not per se discriminatory, but when they include “a constant drumbeat of essentialist, deterministic, and negative language” about a particular race, they may cross the line into actionable discrimination.

The Second Circuit’s detailed analysis fills a gap in circuit precedent regarding when DEI efforts may cross the line into actionable discrimination.

This decision may serve as persuasive authority for future Title VII cases, especially as courts grapple with the boundaries of lawful DEI programming.

So, Should Employers Abandon All DEI or Implicit Bias Training?

I don’t think so. The Second Circuit’s decision clarifies that the legal risk for employers from how implicit bias initiatives are implemented—the content, tone, and workplace impact of DEI efforts are under scrutiny.

We already knew this, yes.

Remember, the Equal Employment Opportunity Commission (EEOC) issued guidance earlier this year about “DEI-Related Discrimination At Work” warned:

Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context. In cases alleging that diversity trainings created hostile work environments, courts have ruled in favor of plaintiffs who present evidence of how the training was discriminatory (for example, in the training’s design, content, or execution) or, at the motion-to-dismiss stage, who make plausible allegations that explain how the training was discriminatory.

“Depending on the facts” means a case like Chislett’s will now be heard by a jury.

The Second Circuit also found that a reasonable jury could conclude that the conduct Chislett experienced—such as repeated negative generalizations about “white culture,” physical segregation by race, and frequent race-based comments—was sufficiently severe or pervasive to create a hostile work environment.

This sets a precedent that DEI efforts, if implemented in a way that creates a hostile environment for any protected group, can give rise to liability.

Finally, the court emphasized that an employer’s failure to address or stop ongoing harassment—even if the harassment arises in the context of DEI or anti-bias trainings—may support liability.

The DOE’s repeated inaction in the face of Chislett’s complaints could be seen as a “custom or practice of acquiescing to” racial harassment.

Practical Implications for Employers

• Employers should review the content and delivery of DEI and anti-bias trainings to ensure they do not stereotype or denigrate any protected group;

• Employers must take complaints about DEI-related hostility seriously, investigate thoroughly, and respond promptly; and

• Remember that anti-discrimination laws, including Title VII, protect all employees from a hostile work environment, regardless of their race or the employer’s intentions behind DEI efforts.

  We knew this was coming.

  Employers, be careful with your trainings.