If you have been reading these updates or attending our firm’s employment law seminars, you know that the EEOC has been laser-focused on bringing claims on behalf of white and male employees. White and male employees have increasingly taken the EEOC’s invitation to file claims. But this genre of case recently suffered a setback in the Tenth Circuit Court of Appeals.
In Young v. Colorado Department of Corrections, the Tenth Circuit Court of Appeals (which governs Utah, Colorado, Kansas, New Mexico, Wyoming and Oklahoma), a white employee of the Colorado Department of Corrections brought a claim that a “training program addressing racial sensitivity and the historical suppression of racial minorities” created a hostile work environment. Young regarded the training as “so extreme that it created a discriminatory environment for Whites like himself.” The trial court and Tenth Circuit Court of Appeals disagreed.
Among other things, Young claimed that a glossary of terms defining “race,” “white exceptionalism” and “white fragility” created a hostile work environment for him. The Court rejected his claim because Young did not “say how the glossary affected his job responsibilities.” Likewise, videos that “contained generalized discussion about White people’s attitudes toward race” did not constitute a hostile-work environment because Young did not “say how the content affected his job responsibilities, interactions with fellow employees, or career advancement.” In short, the Court rejected Young’s claims because he could not demonstrate how the racial sensitivity program impacted his work environment.
One interesting side note to the case. Young also brought a claim that he was the victim of unlawful harassment because the Department of Corrections did not investigate his claims that the sensitivity program created a hostile work environment. The Court rejected Young’s argument noting:
[A]n employer may incur liability for failing to investigate an actionable hostile environment. But an employer’s failure to investigate may merely preserve the very circumstances that were the subject of the complaint. Unless it leads to demonstrable harm, a failure to investigate leaves an employee no worse off than before the complaint was filed.
Because the Court found that Young was not the victim of unlawful harassment, the employer’s failure to investigate his claims left him in the same position and did not create a separate basis for liability.
In sum, in order to state a valid claim for unlawful harassment, an employee must demonstrate how the alleged harassing conduct impacted the terms and conditions of their employment, which Young failed to do. And while the employer got lucky in this case, it is always best practice to investigate any and all claims of unlawful harassment. You can’t comfortably rely on the argument that “well, our failure to investigate was harmless because the underlying conduct did not constitute unlawful harassment,” as the Department of Corrections did in this case. How are you going to know if the underlying conduct constitutes unlawful harassment if you don’t investigate? Don’t tempt the fates. Always investigate claims of unlawful harassment.
