A white guy refused to take his employer’s mandatory “unconscious bias” training, and he was fired. He sued the employer for retaliation, his lawsuit was dismissed, and this week an appeals court affirmed the dismissal.
The plaintiff knew virtually nothing about the training that he refused to get, the court said, and therefore he had no “objectively reasonable belief” that the training was discriminatory. That knocked out his retaliation claim. He also failed to show that his complaints about the training were the reason his employment was terminated. If his retaliation claim hadn’t already been nixed, this would have done it, too.
It’s no secret that employer diversity initiatives are facing a lot of challenges nowadays, and some of the challenges have been successful. This is especially the case since the U.S. Supreme Court’s decision last summer in Students for Fair Admissions v. Harvard University, which dealt with Title VI (not a typo) of the Civil Rights Act of 1964 and addressed certain types of discrimination against students at colleges that receive federal funds. Although Students for Fair Admissions doesn’t apply to Title VII employment discrimination claims, most employment lawyers expect the same principles to apply in the employment context.
Opponents of DEI generally argue that, by favoring members of certain racial or ethnic groups, DEI initiatives discriminate against members of the “majority” group. That could be white (or white and Asian) people, or it could be males, or straight or “cis” people, or some combination thereof.
The man who said “no”
Now, to our case.
In 2020, a grand jury in Kentucky refused to indict police officers involved in the tragic killing of Breonna Taylor, a Black woman.
Not long after the refusal to indict, the Chief Executive Officer of a division of Honeywell International sent an email to all employees in the division, including our plaintiff, Charles Vavra. The email said, among other things, “Racial bias is real. Don’t kid yourself. Each of us has unconscious bias within us.” He promised to hold listening sessions, and said that the company would ensure that it hired from diverse applicant pools and would offer training for employees. The CEO concluded, “My hands and heart are open to each of our Black, Hispanic, Asian, and LGBTQ colleagues. I stand with you.”
In fairness to the CEO, his email also referred to a Black employee who had given credit to white people for ending slavery and supporting the civil rights movement.
Even so, the email rubbed Mr. Vavra the wrong way.
“Nyet.”
About a month later, the company rolled out mandatory training on unconscious bias. The training consisted of a 20-30 minute video, followed by a short quiz. Mr. Vavra took issue with the training, complaining that it was woke, and stupid, and not something he was interested in. He also complained that the training and the CEO’s email discriminated against white people. So he just didn’t do it. He received several reminders during the training period, but didn’t bite. After the deadline came and went, he received more reminders. Nada.
His direct supervisor and HR gave him more reminders. Nein.
He finally sent a lengthy email to the Human Resources Director and told her that, in his view, the CEO “was ‘making his non-white colleagues all victims and turning his white colleagues . . . into villains.'” (Ellipsis in court’s decision.) He also said that neither the CEO “nor anybody else gets to tell me I have unconscious bias. I AM NOT taking this training because it’s a joke, and I’ll use [the CEO]’s email as proof of it.” (Capitals in original.)
Mr. Vavra’s supervisor met with him again. The supervisor said that he himself had done the training and that he did not perceive it as being anti-white. In fact, the supervisor said, the video contained a scenario in which a white male was the target of unconscious bias. Then, Mr. Vavra’s VP met with him and said that refusal to undergo the training “would be considered insubordination.”
But Mr. Vavra continued to say non, and told his VP that he would accept the consequences of his refusal to undergo the training.
After a meeting with HR, Mr. Vavra’s supervisor met with him one last time, and according to the court’s decision, “pleaded” with him to get the training. Mr. Vavra still said nyet. The supervisor then told him that he would be fired if he didn’t undergo the training. Mr. Vavra said nope. As a result, he was fired.
After being fired, Mr. Vavra sued Honeywell under Title VII and the Illinois Human Rights Act, alleging that he was retaliated against for objecting to the employer’s discriminatory actions. At the appropriate time, Honeywell moved for summary judgment, and won. The judge ruling against Mr. Vavra was an Obama appointee. Mr. Vavra then appealed to an all-Trump panel on the U.S. Court of Appeals for the Seventh Circuit.
This time, it was the panel that said NO. The panel agreed with the district court that Mr. Vavra did not have a valid retaliation claim.
First, as I’ve already noted, Mr. Vavra had to have a reasonable basis for believing that his employer had engaged in unlawful conduct. But how could he do that, when he hadn’t viewed the training and didn’t even have any second-hand information about the content of the training (apart from the fact that it included a white male victim)? As the court said, “A belief is not objectively reasonable if it requires rejecting such concrete information in favor of conjecture.”
Among other things, the panel also found that Mr. Vavra was not terminated because of his complaints about the training, but because of his refusal to undergo the training. And it’s generally not against the law for an employer to mandate diversity training.
What employers can learn
This case has four good lessons for employers:
No. 1: Diversity training should acknowledge that members of the “majority” groups can also be discriminated against or treated dismissively. Bias is a two-way street. Apparently, Honeywell’s training was relatively even-handed, and that seems to have helped the company prevail in the courts.
No. 2: Hear out your objecting employees. If you mandate unconscious bias or related training, you are very likely to receive objections from some employees. That’s ok — they have a right to their opinions. Keep an open mind, and be willing to review the program again to ensure that it is not biased against anyone — including the “majority.” (Also listen carefully to employees who have objections based on sincere religious beliefs, and be willing to consider allowing them a different training option as a reasonable accommodation.)
No. 3: Give employees ample time to comply. Mr. Vavra was given about five months to complete the training before he was fired, including one month after the deadline for completion. You may not have to be quite that generous, but be as generous as you can.
No. 4: Politics isn’t everything. In this case, an all-Trump appellate panel agreed with an Obama appointee. What does that teach us? Of course there are exceptions, but the majority of federal judges try to do the right thing in accordance with the law. (Before you throw anything at me, at least give me a chance to duck!)
NOTE: The district court decision has the full text of the CEO’s email and the email from Mr. Vavra to HR, as well as many more details that are not included in the Seventh Circuit decision.