Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—W.D. Wash.: White employee who challenged Seattle’s DEI program fails to advance HWE claim, (Feb 12, 2025)

By Kathleen Kapusta, J.D.

The “real threat to equality in the workplace is not the effort to expose and address racial inequalities, but a resistance to doing so.”

Rejecting the notion that DEI programs are inherently racist and explaining that “training programs are needed because racial discrimination and inequality are present-day problems, not problems of the distant past,” a federal court in Washington, granting summary judgment against the Title VII and WLAD race-based claims of a white City of Seattle employee, found the city’s DEI trainings did not interfere with the terms and conditions of his employment. Nor were comments by his coworkers, including those that occurred during trainings, allegedly calling him a “colonist” and stating that he was to “blame for all injustice in the United Stated,” sufficiently severe or pervasive to support his hostile work environment claim, said the court. The employee’s disparate treatment, retaliation, and equal protection claims also failed (Diemert v. City of Seattle, No. 2:22-cv-1640 (W.D. Wash. Feb. 10, 2025)).

RSJI. As a program intake representative in the city’s Utility Discount Program since 2013, the employee assessed applicants’ eligibility for utility discounts. He alleged that at some point, his race became an “albatross around his neck” as a “deliberate outgrowth of the City’s Race and Social Justice Initiative (‘RSJI’).” The RSJI, which has been in effect since 2004 and which seeks to build a “relational culture,” acknowledges that “[t]he culture that has been internalized and normalized by... government... was created by white, wealthy, Christian, cis-gender, straight, non-disabled men coming from Europe who wanted to protect their place within hierarchy and empire.”

Cannibalism and bingo. Although the employee’s department required employees to complete two RSJI activities per year, it does not take any corrective action against employees who fail to participate. During his tenure with the city, the employee attended only three required RSJI classes. During one of those trainings—“Undoing Institutionalized Racism”—he alleged that the trainer went “off into a rant about... white people, [and] [Christopher] Columbus and being cannibals.” He also alleged that “[o]n multiple occasions between 2014 and 2020, [he] was forced to play ‘privilege bingo’”—an activity in which all employees identified different “privileges” they may have, including height, religion, and gender.

Affinity groups. The city also allowed employees to organize affinity groups focused on eliminating racial disparity. Not only did the employee tell his coworkers the groups were “blatantly racist,” he sought permission to sign up for a person of color-only training as a way to stand up to alleged segregation.

EEOC charge. In December 2020, the employee filed an EEOC charge. He conceded that he purposefully “did not give the City much” for their investigation because he perceived the investigators to be biased. Ultimately, neither investigator found that he had faced unlawful harassment.

FMLA schedule. In 2021, the employee’s FLMA-reduced work schedule was set to expire. Although he submitted paperwork to renew his certification, his request was denied because his medical certification was incomplete. He kept working reduced hours, the Department of Labor found his request had been denied in error, and the city retroactively approved his intermittent leave. He ultimately resigned in September 2021.

Hostile work environment. In support of his hostile work environment claim, the employee argued that Seattle’s RSJI laid “the foundation for all the racial harassment... [he] would face.” But many courts, said the court here, “have held that anti-discrimination trainings play a vital role in preventing workplace discrimination” and the Faragher-Ellerth affirmative defense allows “employers to avoid liability for supervisor harassment by taking a proactive approach to harassment prevention, including by implementing training.”

Finding that DEI and anti-discrimination trainings are not per se unlawful, the court turned to the trainings at issue here. While the employee provided general critiques of the RSJI, including a statement in RSJI materials that “[t]he culture of white supremacy perpetuates the belief and legitimizes the practice of treating people of color as inferior and white people as superior,” he provided very few details about the content of the trainings.

Though the court acknowledged that the trainings contained statements about race, “exposure to material that discusses race does not by itself create an unlawful hostile-work environment.” Observing that the employee equated acknowledgement of institutionalized racism and implicit bias with personal attacks, the court explained that “Passive exposure to these concepts cannot reasonably be construed as a threat to [his] safety or well-being or an impediment to his job.” In other words, said the court, the trainings did not interfere with the terms and conditions of his employment.

Workplace comments. The court next found comments made by the employee’s coworkers and supervisors—including that white people do not experience racism, that “the real truth is that all white people are cannibals[,]” “racism is in white people’s DNA[,]” “white people are like the devil,” and that the employee was a colonist and was to “blame for all injustice in the United States”—were not sufficiently severe or pervasive. At least some of the comments were made during RSJI trainings and, observed the court, “Racially charged comments made in this setting, while still potentially harmful, are better framed as attempts to express perspectives or challenge ideas within the training’s scope.” Not only can these comments be addressed constructively, they were very different than comments made “on a production room floor that serve no educational purpose.”

As to the employee’s claim he was attacked online by his coworkers, the court explained that he instigated the unfolding dynamic by virtue of his response to an article posted to an internal city page about the Tulsa Massacre of 1921. More than anything, the court found the employee’s exchanges with his coworkers showed he “gave as good as he got” and that he “relished the opportunity to express a contrarian view.”

Physical confrontation. The employee also claimed the supervisor who referred to him as a colonist physically accosted him, got in his face, and told him he had white privilege. But in a contemporaneously drafted email, the employee did not mention race and did not allege that the supervisor acted in a physically threatening manner. Further, the court found it clear from the email that the dispute between the two stemmed from the employee reporting the supervisor for having family members on the Utility Discount Program, not anything owing to racial animus. Accordingly, the court granted summary judgment against the employee’s hostile work environment claim.

Disparate treatment and retaliation. Granting summary judgment against his disparate treatment and retaliation claims, the court found the employee failed to show he suffered an adverse action. His argument about the city’s inadequate investigations into his complaints was incoherent, and while the city did mischaracterize his reduced work schedule, he continued to take intermittent FMLA leave and did not face repercussions for doing so.

And while he argued that another supervisor treated him more harshly than his coworkers, he admitted he knew nothing about whether the supervisor cancelled more meetings with him than with his coworkers and acknowledged that he could not recall whether she elevated the technological issue he complained about, even though he accused her of doing so in his declaration.

Regarding his claim the supervisor subjected him to harsher scrutiny, even if she “[y]ell[ed] at or otherwise us[ed] a harsh tone” toward him, this was insufficient to find an adverse employment action in a discrimination claim.

Equal protection claim. Finally, addressing the employee’s claim that recognizing race in the workplace or establishing affinity groups inherently violates the law, the court found he provided no factual indications showing that the Equal Protection Clause had been violated here. The court agreed that racial affinity groups do not all operate alike. Properly structured groups are voluntary, open to all who share the group’s goals, and “can foster a sense of belonging and respect that advances equity in the workplace and improves the bottom-line.”

But when these groups endorse exclusionary practices, the court noted that they “risk transgressing fundamental equal protection principles and other civil rights laws.”

Here, however, the court found the city’s caucuses were “open to any City employee, regardless of their race or how they identify or choose not to identify,” participation was voluntary, those who chose to participate received no additional employment benefits, and those who chose not to participate faced no consequences. “On this record,” said the court, “no reasonable juror could find that the City acted with a discriminatory purpose in sponsoring the caucuses or that a discriminatory policy was nested within them.”

The case is No. 2:22-cv-1640.

Judge: Whitehead, J.

Attorneys: Andrew R. Quinio (Pacific Legal Foundation) for Joshua A. Diemert. Darrah N. Hinton (Davis Wright Tremaine) for City of Seattle.

Companies: City of Seattle, Washington

Cases: RaceDiscrimination Discrimination Discharge PublicEmployees ESGNews WashingtonNews