Excerpted from a Constangy Brooks Smith & Prophete LLP Blog by Robin Shea
A man 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, the court said, and therefore he had no “objectively reasonable belief” that the training was discriminatory. He also failed to show that his complaints about the training were the reason his employment was terminated.
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”
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 the company would ensure 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.”
The email rubbed Mr. Vavra the wrong way.
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 quiz. Mr. Vavra took issue with the training, complaining that it was woke, and not something he was interested in. He also complained that the training and the CEO’s email discriminated against white people. He received several reminders during the training period, but didn’t bite.
His direct supervisor and HR gave him more reminders.
He finally sent a lengthy email to the HR 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.'” 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.”
The supervisor said that he himself had done the training and he did not perceive it as being anti-white. Then, Mr. Vavra’s VP met with him and said that refusal to undergo the training “would be considered insubordination.”
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 no. 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.
What employers can learn
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 court.
No. 2: Hear out your objecting employees. If you mandate unconscious bias or related training, you are very likely to receive objections. Keep an open mind, and be willing to review the program again to ensure that it is not biased against anyone — including the “majority.”
No. 3: Give employees ample time to comply. Mr. Vavra was given five months to complete the training before he was fired. 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.
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