In the case of Diemert v. City of Seattle, the opinion was authored by Chief Judge Mary Murguia and joined by Judges William A. Fletcher and Lucy H. Koh:
During his tenure, Diemert participated in the City’s Race and Social Justice Initiative (the “RSJI”). The RSJI is designed to dismantle institutional racism within the workplace by, among other measures, requiring staff to take part in trainings on racial justice and by enabling affinity groups organized around racial identities.
Diemert pursued a range of claims, most of which were rejected by the court; however, the court allowed a hostile environment claim to proceed, based on the following allegations:
Diemert points to the following as evidence of an objectively hostile work environment: (1) in 2015, Diemert was discouraged from applying for a supervisory role, a person of color was hired for the position, and Diemert performed the duties of the position without receiving the corresponding title or pay; (2) in 2015, [a manager in Diemert’s department] asked Diemert, “[W]hat could you possibly offer our department …, being a straight white male?”; (3) in 2016, manager Gloria Hatcher-Mays asserted that it was “impossible” to be racist toward “white people”; (4) in 2017, supervisor Tina Inay urged Diemert to step down from his lead role in part to permit a person of color to assume his place; (5) in 2017, a coworker labeled Diemert a “racist” and told him that “‘white people’ are to be blamed for ‘all atrocities’ and that the United States was built on a system of ‘white supremacy'”; (6) in 2019, Diemert overheard RSJI trainers claim that “white people are cannibals,” that “racism is in white people’s DNA,” and that “white people are like the devil”; (7) between 2019 and 2020, supervisor Shamsu Said referred to Diemert as a “colonist,” physically confronted him, accused Diemert of possessing “white privilege,” and told him that he was “to blame for all injustices in the United States”; (8) in 2020, coworkers told Diemert that he had no right to speak about black oppression and charged him with using his “white privilege” to undermine their lived experiences; (9) in 2021, a new coworker stated that his own self-care included “being around Black and brown folks”; and (10) also in 2021, Diemert faced criticism from coworkers after defending bans on critical race theory in connection with a discussion of the Tulsa Race Massacre.
And here is the heart of the court’s evaluation of this claim (which many view as more influential than the rulings on the other, rejected, claims):
To succeed on a hostile work environment claim under Title VII, Diemert must demonstrate: (1) that he endured conduct because of his race; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive work setting….
“The work environment must be perceived as abusive both subjectively and objectively.” In deciding whether a workplace is abusive, courts assess the totality of the circumstances, including “how frequently the discriminatory conduct occurred; its severity; whether it was physically threatening or demeaning, or merely an offensive remark; and whether it unreasonably hindered an employee’s performance.” “No single factor from this non-exhaustive list is determinative.” “The required level of severity or seriousness tends to be inversely related to how pervasive the conduct is.”
“Not every insult or harassing remark will amount to a hostile work environment.” “‘[S]imple teasing, offhand remarks, and isolated incidents (unless extremely serious)’ will not trigger Title VII protections.” “The standard for judging hostility is meant to ensure that Title VII does not evolve into a ‘general civility code.’ And when properly applied, this standard ‘filters out complaints about ordinary workplace irritations, such as occasional abusive language, gender-related jokes, and sporadic teasing.'”
Training programs at the workplace that address racial barriers are not inherently discriminatory, and nothing in Title VII prevents employers from discussing historical and ongoing discrimination against people of color or from seeking to address such discrimination. See, e.g., Chislett v. N.Y.C. Dep’t of Educ. (2d Cir. 2025) (rejecting the notion that “the conduct of implicit bias trainings is per se racist”). Yet “Title VII’s disparate-treatment provision does not distinguish between majority-group plaintiffs and minority-group plaintiffs.” Consequently, race-conscious training programs may violate Title VII when they create a racially hostile work environment. See Chislett (“When employment trainings discuss any race ‘with a constant drumbeat of essentialist, deterministic, and negative language [about a particular race], they risk liability under federal law.’ And when a municipal agency consistently ignores the racial harassment of employees in both trainings and workplace interactions, it can be held liable.”)….
Here, the parties dispute only whether the workplace incidents cited were sufficiently severe or pervasive to establish an objectively hostile work environment…. We conclude that the alleged incidents were numerous, frequent, and severe enough to present a triable question as to the existence of a racially hostile environment. Viewed in isolation, some of the incidents might not suffice. The court has cautioned, for instance, that describing a Chinese coworker as a “China Man” while ridiculing her appearance, telling a Hispanic coworker that “Hispanics do well in the field,” and referring to a female coworker as a “madonna,” a “regina,” and a “castrating bitch” were not, in themselves, enough to prove hostility. But in this case, unlike those single or few incidents, Diemert presented a five-year pattern of numerous occurrences.
This case thus bears similarity to Reynaga v. Roseburg Forest Prods. (9th Cir. 2017), where a Hispanic millwright alleged repeated racially charged conduct over six years, including racial slurs, demeaning statements about minorities, and repeated belittlement in the presence of coworkers. The court found that a reasonable fact-finder could determine these actions were severe or pervasive enough to establish a hostile environment.
The present matter aligns with Reynaga in that the incidents referred to Diemert’s race, targeted him personally, prompted formal complaints, necessitated the separation from a harassing coworker, unfolded over years, and matched the degree and frequency seen in that decision.
Likewise, the analysis mirrors Chislett, where a white supervisor in New York City’s education department faced persistent racially charged training and confrontations affecting supervisory duties. The trainings included statements about the supposed supremacy of white culture, and a staff retreat featured confrontations that highlighted white privilege. The court recognized that racialized training could spill over into everyday work life and concluded that a rational juror could find a racially hostile work environment in that scenario.
Here too, the evidence, taken as true, demonstrates a sequence of racially offensive remarks and generalized stereotypes largely disconnected from legitimate training objectives. Diemert was discouraged from advancing on account of his race and did not receive substantial support from his supervisors when challenging what he perceived as discriminatory treatment. Construed in the light most favorable to him and with all reasonable inferences drawn in his favor, the court cannot conclude as a matter of law that a reasonable jury could not find a racially hostile work environment. When the question of severity remains debatable, it is more appropriate to leave the assessment to the fact-finder than to resolve the matter on summary judgment.”
Personally, I remain somewhat skeptical about imposing “hostile environment harassment” liability on employers based on speech directed at the workplace as a whole (rather than at a specific employee). While some judges share these First Amendment concerns, others appear comfortable with such speech restrictions; in this case, however, much of the alleged speech targeted employees because of their race.
