Employers pay a lot of money for diversity training and sexual harassment training, but often the training backfires and blows up in the face of the employer that paid for it. In Hartman v. Pena (1995), the Federal Aviation Administration got sued for sexual harassment after it subjected employees to three days of diversity training that scapegoated white males. After a federal judge refused to dismiss the case against it, the agency had to pay out a settlement to the white male employee who sued.
Diversity training often imparts bad legal advice to managers and employers that can come back to haunt them in court.
Gail Heriot, a law professor and member of the U.S. Civil Rights Commission, reports on the sexual harassment training she received at the University of San Diego, in a state (California) where such training is mandatory under state law. She points out that the training sent the message that criticisms of affirmative action by white male employees are something that the employer should “nip in the bud” through investigations.
This is exceedingly dumb legal advice, since criticism of affirmative action is protected against retaliation by Title VII of the Civil Rights Act, 42 U.S.C. 1981, and other laws, even when the affirmative action program criticized turns out to have been perfectly legal. Even the very court rulings that have upheld private-sector affirmative action programs, such as Sisco v. J.S. Alberici Const. Co. (8th Cir. 1981), have allowed employees to sue employers who retaliate against them for criticizing affirmative action.
In the public sector, the employer also faces a First Amendment lawsuit. The California Department of Corrections attempted to fire John Wallace after he angrily denounced its affirmative action plan to the Hispanic female employee he perceived as benefiting from it. The California Court of Appeal, however, found that his criticisms of the plan were protected by the First Amendment, and barred Wallace’s firing, in California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997).
Employers are often quite gullible about the claims made by “diversity” trainers. For example, they permit minority trainers to promote racial stereotypes that would provoke outrage if they were subsequently repeated by white managers or employees. For example, Glenn Singleton, a wealthy “diversity” trainer, teaches that “white talk” is “impersonal, intellectual, verbal” and “task-oriented,” while “color commentary” is “emotional.”
If a white person said this, it would rightly be regarded as a ridiculous, racist stereotype that relegates black people to inferior status. But because Singleton himself is African-American, and he sugarcoats his racist stereotypes about black people by coupling them with ideologically trendy attacks on white people (whom he depicts as “impersonal” and “racist”), liberal school superintendents eat it up.
Superintendents in places like Arlington, Virginia hire him to give their staffs mandatory “diversity” training. The Arlington Public Schools Superintendent, Dr. Robert G. Smith, admitted to me that Singleton’s racial theories were “provocative,” but defended his hiring as a way of addressing the minority achievement gap. That makes absolutely no sense, since Singleton’s racial theories reinforce the idea that studying is “acting white,” a terrible notion that fosters the minority achievement gap. If any white teacher or school administrator repeats what Singleton claims about minorities not being “intellectual,” he and the school system that employs him will be publicly denounced as a racist, and people will say that the school system itself is to blame for fostering such racist ideas because it hired Singleton to promote them. (California Superintendent Jack O’Connell, a white liberal, was recently embarrassed, and called racist, after he repeated a belief that Glenn Singleton shared with him: that black people are loud. Singleton also embarrassed the Seattle Schools in a landmark Supreme Court case).
Major employers have paid out millions of dollars in discrimination claims because of diversity-training programs. One Fortune 500 company paid out tens of millions of dollars in response to a class-action racial discrimination suit by minority employees, which was fueled by remarks management employees made after undergoing mandatory diversity training (they joked about jelly beans used in the training to represent minority employees. That, coupled with a poor quality recording in which a manager’s reference to “Saint Nicholas” was misinterpreted as the N-word, created a furor).
Diversity training often triggers workplace conflict and lawsuits, by compelling employees to talk about contentious racial or sexual issues, with resulting acrimony, and remarks that are misinterpreted or perceived as racially or sexually biased. For example, in Stender v. Lucky Stores (1992), statements made by managers during sensitivity training were held by a court to be admissible as evidence of discriminatory intent within the organization. That prevented the employer from getting a lawsuit dismissed.
Many judges take a dim view of diversity training in general. In Fitzgerald v. Mountain States Tel & Tel. Co. (1995), where employee reactions to diversity training gave rise to a lawsuit, the Tenth Circuit Court of Appeals noted that “diversity training sessions generate conflict and emotion” and that “diversity training is perhaps a tyranny of virtue.”
NOTE: THE FIRM IDENTIFIED AS PROVIDING THE TRAINING DESCRIBED IN PROFESSOR HERIOT’S POST SAYS THAT HER UNIVERSITY IS NOT ONE OF ITS CLIENTS, AND THAT THE TRAINING DESCRIBED ABOVE APPEARS TO BE FROM A DIFFERENT PROVIDER THAN IT.