Client Advisory

In Chislett v. New York City Department of Education, the U.S. Court of Appeals for the Second Circuit held that mandatory implicit bias training can give rise to a race-based hostile work environment claim under Section 1983 if the training discusses a particular race “with a constant drumbeat of essentialist, deterministic, and negative language.”
This claim arose during Leslie Chislett’s employment from 2017 to 2019 with the New York State Department of Education (“DOE”) in the Office of Equity & Access (“OEA”). DOE employees were required to participate in implicit bias trainings, which were facilitated by both DOE staff and outside vendors. Chislett alleged that these “exacerbated [an] already racially-charged workplace.” Over the next two years, instructors during bias trainings mentioned several times that the “values of [w]hite culture are supremacist.” In sessions, there was persistent messaging to the effect that white culture is generally “defensive,” “entitled,” “paternalistic,” “power hoarders,” and “privileged.” During one training session, the Senior Executive Director of the OEA declared, “There is white toxicity in the air, and we all breathe it in.” In another, there was physical segregation of white employees and singling out of staff by race as participants physically “lined up to reveal the dividing ‘color line of privileges that favored whites.’” Outside the trainings, when Chislett disciplined or managed subordinates, she was allegedly called racist and labeled “white and fragile.” Chislett resigned from the DOE in September 2019.

The next month, Chislett initiated suit, alleging race discrimination under 42 U.S.C. § 1983, claiming that the DOE had a racially discriminatory policy that caused her demotion, created a hostile work environment, and led to her constructive discharge. The district court granted Defendants’ motion for summary judgment, dismissing all claims. Plaintiff appealed.

The Second Circuit found that a rational juror could find that Plaintiff experienced a racially hostile environment, therefore presenting an issue of fact precluding summary judgment. There were also questions of fact as to whether the racial harassment could be imputed to the DOE and as to whether the racial hostility stemmed from a municipal policy. However, the Court stated there was no evidence that Plaintiff was demoted or constructively discharged because of her race. The case was remanded for further proceedings.

Key Takeaway: Employers should review internal trainings including those outsourced to vendors to ensure the trainings do not include themes that could be interpreted as biased toward any protected group.