Litigation Update: Young v. Colorado Department of Corrections

[Music]

 

Sam Fendler:  Hello everyone. And welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today we're excited to host "A Litigation Update on Young v. Colorado Department of Corrections." We're joined today by Bill Trachman. Will is General Counsel at Mountain States Legal Foundation. He has previously served in the Department of Education as Deputy Assistant Secretary in the Office for Civil Rights.

 

Will is also co-chair of the Colorado Lawyers Chapter of The Federalist Society and an executive committee member of our Civil Rights Practice Group. The Civil Rights Practice Group, by the way, was recently named our 2023 Practice Group Executive Committee of the Year. So, Will, on behalf of The Federalist Society, we want to thank you very much for the great volunteer work that you do. If you'd like to learn more about Will, his full bio can be viewed on our website, FedSoc.org. 

 

After Will gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your zoom window, and we'll do our best to answer as many questions as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. Now, with having said all that, Will, we really appreciate you being here today. And the floor is yours. 

 

William E. Trachman:  Thanks so much, Sam. Well, first let me just begin with a general pitch for sunscreen. You can see I have a little bit of a thing on my face. I appreciate everyone's concern. And then, also, a second apology for the Christmas beard that I've been growing for the last few weeks. But I'm really excited to be here talking about Mountain States Legal Foundation's Tenth Circuit case, Young v. Colorado Department of Corrections.

 

      We just had oral argument on November 17, which we felt very good about. And our panel was both expert and attuned to the issues. So I'm going to walk through some of the background of the case, some of the allegations that we've made in the complaint, what happened at the district court, and then where we stand now. So, first, you can see my name and title there. Here’s the factual background. 

 

      In the picture on the screen, you can see the Limon Correctional Facility. My client, Josh Young, worked at the Limon Facility starting in 2017. And, although he only started in 2017, he quickly rose in the ranks. So he was promoted twice between 2017 and 2021. So, at the time that the allegations and the complaint occurred in 2021, he was already two ranks above where he had started. And Josh did a number of things in the prison, but one of the things that he did toward the end of his tenure there was a housing sergeant. 

 

      So, he would make sure that visitors to the prison were safe, were not carrying any contraband, make sure that prisoners themselves could interact with those guests and ensure that even though these prisoners were obviously incarcerated that they could have visitors and those visits would go effectively. He did interact directly with prisoners, and, of course, with a number of colleagues as he worked in prison life, as any number of correctional officers do.

 

      Josh was very good at his job, as I've already said. And he enjoyed doing the job because it involved what he considered rehabilitation of people who could maybe turn their lives around and maybe have a better life after they had departed from the prison. So how do you function as a good employee in a prison setting? Well, obviously, you have to maintain safety. In a prison, race is often an issue. There are various race gangs. There are often allegations of racial bias or racial tension that occur in prison life. And then, occasionally, there's violence.

 

      So, sometimes prisoners attack guards. And there might be a setting where you really need to rely on your instincts and your best judgment in order to keep the safety, both of yourself and your colleagues and the prisoners, at a high priority. Even if one prisoner is being violent, there might be other prisoners who you need to protect. 

 

      And then, the last thing I'll say is that Josh considers himself a Caucasian person or a white person. It's not really part of his identity. He doesn't think about his race. When he gets up in the morning, he doesn't think to himself, "Oh, I belong to the Caucasian race," or "I am a white person." But, as we'll see in some of the training that the Colorado Department of Corrections forced him to do, it made him think, "What is my race? How do I interact with colleagues based on that race?"

 

      So, what did CDOC do?  First, they announced that every employee in the prison system was going to undergo mandatory Equity, Diversity and Inclusion training. It made that announcement towards the end of 2020. Josh has noticed that it happened very quickly after President Trump announced an executive order that was preventing some forms of very aggressive diversity training in the executive branch, and that Colorado announced this just a week or two after President Trump announced that executive order, which has since been withdrawn.

 

      It gets rolled out over the next few months.  And so, in the early spring, around March of 2021, Josh takes the EDI training in his workplace. So, the training involves four what we call modules that you click through. And many of you have undergone workplace training before. You know that there's a blurb or a picture or a setting on the screen. And you have to read the material and maybe click through it, maybe answer some of the questions in order to get through the training. 

 

      All of the materials — that is, the modules and the rest of the training — are based upon a glossary that begins part of the training. And you read that glossary as part of the mandatory training. And then, at the end, after you've clicked through the modules, one of the later slides in the training says, "Here are a bunch of recommended tools and resources." So, there's no duty that you have to click through those resources or literally read every word of those resources, but they're recommended. If you're a star employee, like Josh, you tend to take to heart what your employer says are recommended resources. 

 

      So, let's talk about the glossary upon which the rest of the training is based. It's called "The Glossary of Equity Terms." You can see the Colorado stamp on the front of it, from the Office of Health Equity, which is a division of the Department of Public Health and Environment. This is not a third-party website. It's not an activist group that is publishing definitions that are based on their political beliefs. This is the official state of Colorado glossary that is supposed to be used for employee DEI training.

 

And it holds all the indicia of being official. You can see some of the markings on the document say things like, "Climate Justice," or "Black Lives Matter," or "LGBTQ+," and, of course, the stamps themselves. So, there's no doubt about the fact that this is an official document being promulgated by the state of Colorado for all employees like Josh, and around the state, who are taking this training to review and digest and adopt. 

 

So, this is the first page of the glossary. And it says, "In an effort to provide common language, the Office of Health Equity has compiled a list of terms relevant to the work and movement to advance equity. Take note that evolving language is a positive sign in social justice movements. To that end, this list will be modified on an ongoing basis. If a term exists that you'd like to further explore or don't quite agree with, we encourage you to browse the internet for additional articles, blogs, etc., on the topic. Just as language evolves over time, our opinions and beliefs may also evolve."

 

Note that it doesn't say, "You might be right if you disagree with a term." It says you'll get there. You're welcome to do additional research. You can check out articles and blogs. A number of them are linked in this glossary. And your language may evolve to ultimately be correct, in the sense that that's the common language that the state of Colorado is providing for these terms.

 

The first term that I want to talk about is the term "BIPOC," which you can see start at the bottom of that slide. But here it is more broadly. The definition of the word BIPOC is an acronym for black, Indigenous people and people of color.  The term is used to acknowledge that Indigenous and black people have been most impacted by whiteness, both historically and in the present day. This shapes the experience of, and relationship to white supremacy for all people of color, within a U.S. context.

 

So, a couple of points just based on this first definition. You can see that the state of Colorado uses the term "whiteness" as a noun, that there is a general statement that every person of color has a relationship in modern-day America to white supremacy and it affects all people of color. And so, Josh, who is a white person — although, again, he doesn't think of himself when he wakes up every day in the morning as a white person — reads this and says, "Oh, my race is being turned into a noun. And it's also impacting my colleagues who are not white. And they are experiencing white supremacy based on my race and the qualities that I exhibit as an individual."

 

Then the second definition is the definition of race that I want to point out. And the first line of this isn't all that objectionable. It says, "Race is a social construct that artificially groups people by skin tone and other physical traits." Okay. Then it goes on and says, "The concept, which has no genetic or scientific basis, was created and used to justify social and economic oppression of people of color by white people." And so, as this training unsurprisingly does across those four modules and all of the recommended training, it talks about race: how to achieve racial equity, what race means, how we have a relationship with race.

 

And so, every time that race is used in the EDI training, Josh is supposed to call back this definition of what race is. It is a concept. It's fake. It has no scientific basis, no genetic basis. And it was created by white people like Josh to only justify social and economic oppression of people of color, like his colleagues in the prison system and many of the prisoners, by white people. So white people had a motive. They created race. And they use it to socially and economically oppress people who are not white.

 

Another definition I want to point out is the definition of white exceptionalism. And that's the belief that some white allies, that they are the exception to white racism even though they fail to address the implicit ways in which they perpetuate white supremacy. These individuals are often more interested in seeming not racist than actually improving the lives of people of color. This is sometimes referred to as "fakequity."

 

So, one thing that the state is going to advance, as we'll see in a few moments, is that these were really just optional definitions. You're welcome to believe them, take them, leave them if you don't like them. But here, the glossary actually preempts that idea by saying if you reject this idea, you fall into this category of a white exceptionalist where you don't think that you perpetuate white supremacy even though you do. And, in fact, you are exhibiting "fakequity." 

 

So, to the extent that the state is saying, "Well, these are just optional definitions that you're welcome to take or leave," the definitions themselves belie that. And then the next definition I want to talk about is the definition of white fragility, which says it's the discomfort and defensiveness often triggered by feelings of fear or guilt on the part of a white person when confronted by information about white inequality and justice. So white fragility is a common term that we've been seeing a lot. 

 

There's a prominent book called White Fragility by an author named Robin DiAngelo. And here it's included in Josh's official Colorado state-mandated glossary, talking about how white people feel when they're confronted about racial inequality and justice, which is exactly what the EDI training is about to do. White privilege is another definition. And here you can see White Supremacy'' on the slide. "A historically based institutionally perpetuated system of exploitation and oppression of nations and people of color by white peoples of European decent for the purpose of establishing, maintaining, and defending a system of wealth, power, and privilege."

 

So, once again you have white supremacy. Remember, the definition of white exceptionalism told Josh that he is never the exception to white supremacy and that he perpetuates white supremacy based on his skin color. At the end of the glossary there is a concluding note about why it's appropriate to capitalize the term "black," but not appropriate to capitalize the term "white" when referring to those racial groups. And the glossary says, "When you're referring to a black person, it is appropriate to capitalize that word to convey a shared sense of history and identity among people in the African diaspora and within Africa. And it puts the term on equal racial, ethnic, and cultural footing."

 

So, there's a footing aspect here, like an equality aspect, as terms like Latinx, Asian American, American Indians, and Alaska Natives. But then it says, "Don't capitalize white. Capitalizing "white" could be seen as a symbolic nod to white supremacy. And it's important to note that the majority of white Americans do not see themselves as a collective ethnic group the same way that black Americans do." Just a concluding note in the glossary. 

 

Here's another part of the training which is obviously not the glossary. It's called "The Equity Continuum." And this is designed to demonstrate to employees how they ought to interact with their colleagues in the workplace. And I'm just going to point us to the bottom right-hand corner of the Equity Continuum, which says that success is often defined by treating groups and people differently, based on historic injustices and present-day barriers. So, everyone has the opportunity to thrive. 

 

And lest there be any doubt that this is about race when they're talking about historic injustices and present-day barriers, you can see on the bottom left of this corner where they're defining diversity that they're talking about whether success or failure is connected to statistical performance when it comes to hiring. So, they've hired X number of women, or X number of black participants, Latinx participants and white participants. So, there is no question that this slide is talking about race — and sex and well, but also, most importantly, race — when they're talking about how to treat people differently.

 

So, you can imagine Josh walking into the prison every day hoping that his colleagues, just like him, value the importance of safety and the idea that the prison is a place where you have to treat people equally and with caution and respect in order to get through the day and create a rehabilitative atmosphere. And then, all of a sudden, his colleagues are being told, "You ought to treat Josh differently based on his race, because he suffers fewer historic injustices and present-day barriers." 

 

Next, I want to talk about some of the modules themselves.  So, the modules instructed Josh — and all of the people who took the training, which was everyone — that even in the most routine of decisions in the prison they had to think about race. So, I mentioned before that Josh is white. Obviously not everyone in the prison system is white. But everyone in the prison system is being told "You ought to have race front and center when you think about your decision-making." 

 

So, one of the modules says, "We must operationalize racial equity, integrating racial equity into our routine decision-making processes, and develop implementation of measurable actions." So, it's one thing to say, "We need to embark on a major program to make people feel included." But the module says that even in the most basic of decisions you have to be thinking about racial equity and race. And remember, race is defined as "a made-up concept that is invented by white people to oppress, socially and economically, people of color."

 

Similarly, in Module 4, it says "We know we've presented a lot of information, but you should know that you are not alone in the journey to understand inequities and to make a difference through your role in state government." So, the state, again, says a lot of this is optional. We just want to provide information to employees. But here the module itself says, "No, you need to live this training, because you can make a difference through your role as an employee in state government." To the extent that the state is saying "This is optional," it is belied by the training itself. 

 

More references to the modules. The modules say, "We must operationalize racial equity integrating -- I already read that quote about routine decision-making. Young and other employees were instructed to let women and Caucasians speak first in group settings. So, Module 4 says that, typically, women and people of color aren't given as much opportunity to contribute. To challenge this, invite women and members of historically marginalized groups to speak first.

 

So, it's talking about any meeting that you have within the workplace and the idea that both discussion leaders and rank and file employees who are taking this training ought to not speak until women and racial groups other than Caucasians have had a chance to speak. So, in that way, they're actually urging Josh and all of Josh's colleagues to do something specific based on the race of their colleagues. 

 

And then it's also helpful to share these strategies out loud at the beginning of meetings to serve as guidelines and equip your staff to be more equitable and inclusive. So, lest you forget that this is a thing that you do, maybe you think, "Oh, well, equity training only happens once a year," no, this is a thing that you ought to do and speak out loud at the beginning of every meeting to remind people that, during the meeting, non-whites and women will have the first opportunity to speak in a group setting.

 

And then, at the end of the training, there were recommended other tools and resources. So, the first was called "Redline." That's a YouTube video. The next is called "I am Denver," which is about Japanese internment camps. There's a YouTube video about "Intersectionality 101."  Then you're got "LGBT 101." And then, I mentioned before, there's a book called White Fragility. And then, the third, there is How to be an Antiracist by Ibram X. Kendi. So here, the employer, Colorado, is referring all of its employees to these materials.

 

And it's not just that they're calling them random materials. They're calling these '"tools and resources" and they are affirmatively recommended by the employer. I did want to go back and talk about one part of the modules, which is the bystander intervention program. I thought this was especially interesting because all employees are supposed to display bystander intervention principles. And we say in the complaint that this was meant to have Young evaluate his colleagues' status in terms of whether they are lower power, based on race and sex. And, in fact, it says that you ought to step in and intervene in a moment where you interpret a person of lower power and/or status being interrupted, talked over, disregarded, or ignored. 

 

So you could certainly envision a number of situations where, suppose Josh is there and someone who is African American is interrupted, or Josh thinks that they're not being appropriately regarded or maybe they're being ignored. He has to actively make a decision. He has to witness what race and maybe what sex the people around him are, decide, "Oh, okay, because of that person's race, I have to act." And then he has to, himself, interrupt and step in, in order to correct what is occurring. And so that bystander intervention process is a duty that all employees have.

 

I think I've seen these definitions a few times before. Let me move on. So, I mentioned that there are a few "optional" or other tools and resources that were presented to Josh in the last slide of the training. One of them is the redlining video where we have this woman talking about her history dealing with segregation. It's very serious. And then she makes a comment during the video that's directed at viewers of the video that obviously they're supposed to believe, saying that "The concept of a middle-class black only exists in the mind of a middle-class black."

 

So, you can see she's using present tense there. "Everywhere else in the suburbs, you were that (N-word)" — and she uses the full N-word in the video — "family on the corner of Warren Road and Boulevard Way." So, you can imagine that the N-word is a very charged word. Here you have state employees playing a video and blasting that word from their computers on their speakers with audio. And, presumably, as each person in the prison takes this training and reviews this video, you might have multiple instances where the N-word is spoken aloud through this recording, which I find to be very surprising.

 

In the same video you have this gentleman talking about a few qualities that white people have. And he says that whites are the true beneficiaries of affirmative action, that whites don't know that they're true beneficiaries of affirmative action, or that they refuse to accept that if they don't know it, and that white believe a false narrative about themselves that they are responsible for their own success. Same guy keeps talking. Says that whites don't acknowledge that their self-esteem and sense of mastery and destiny is based on affirmative action and not merit. So, you can imagine if this were discussed about any other group, if this were African Americans or Jews or Asian Americans, to make these sweeping generalizations about people saying, "They think that their success is based on merit, but actually it's not and they just refuse to accept it."

 

In another video which was part of the other recommended tools and resources, it's "Intersectionality 101." And they actually physically divide people based on race in the video. You can see there's a box around these Claymation figures. And they distinguish who has to deal with intersectionality, which I interpret to mean multiple different protected categories. So, you might have race and religion and sex. And so, Greta, because she's white, obviously, can ignore intersectionality if she wants to. That's a form of her privilege. It doesn't say white privilege but that's obviously what it means.

 

Well, so how optional were these materials, including the materials where they verbally say the full N-word? In the modules, Young and his colleagues were discouraged from stopping at just reviewing the modules. That wasn't good enough. And so, they say there is a list of tools and resources for you to continue your journey. And they want you to explore innovative ideas. And, in doing so, there are tools and resources listed on the slide, which is a slide a few slides ago, and the next, to help you do just that. So, lest there be any doubt that these were just sort of recommendations that were merely floated and there was no real pressure to actually look at them, the training itself belies that.

 

So, a matter of months later, Josh filed a complaint saying, "Look, there's discriminatory training going on in the workplace. This is a prison setting. We can't treat people differently based on race. I can't treat prisoners based on race. And God forbid that my colleagues would treat me differently based on race. If there were a prisoner or a visitor attacking me and a colleague had to evaluate, 'Is Josh really deserving of my intervention here?  Maybe he was using his white privilege. And, because success on the equity continuum means treating people differently based on their race, I need to consider the different ways that I should stop this prisoner from attacking my colleague.'"

 

And the prison said, "Not only are we not going to agree with your complaint, we are declining to investigate it." So, a matter of days later, Josh resigned. We filed a charge with the EEOC, the Equal Employment Opportunity Commission, a few weeks later. That charge was returned to us in late 2021. And then we filed, in early 2022, a complaint in federal district court in the District of Colorado. And that complaint involves two causes of action.  The first is a cause of action for hostile work environment under Title VII.  Many of you are familiar with the idea that Title VII bars workplace discrimination on the basis of a variety of categories like race, sex, religion. Here, obviously, race is the operative part of that. 

 

But it doesn't just bar discrimination in the form of terminating someone or not hiring someone based on their skin color or reducing their pay or demoting them. Obviously, those are traditional, very obvious forms of discrimination that Title VII prohibits. But there's another theory that Title VII covers, which is called "the hostile work environment theory." And you often see this theory involved where there are a good deal of racial epithets in the workplace. So there's no demotion, there's no failure to hire, there's no change in salary. But it's very hard — nearly impossible, in most cases — to work in such a racially-charged environment. And so, Title VII prevents employers from allowing that employee/employer atmosphere to fester. 

 

The elements of that claim are, number one, that you're a member of a protected group and race is one of the factors. So we argued that Josh, just by the fact that he is alleging that he's suffering race discrimination as a member of a protected group that he was subjected to unwelcome harassment in the form of all of the training materials that were directly making sweeping negative generalizations about him, and, based on his race, all the negative qualities that he had, and creating this atmosphere in the prison of distrust, of suspicion, of fear of the idea that you might be injured, or, worse, death, because a prisoner had attacked you and your colleagues won't do anything, based on your race, that the harassment is based on race.

 

Obviously, here, it was based on racial differences between him and what the training was talking about. And the key is going to be this fourth factor, whether it was sufficiently severe or pervasive to alter a term, condition, or privilege — so anyone of those three — of employment. And then we also brought a second claim which was not a statutory -- well, it's a 1983 claim under the Equal Protection Clause arguing that the training was motivated by anti-white bias. 

 

And the import of that claim is because what we were worried about is that Josh would win the case, go back, be reinstated, and return to his position. And then, Colorado would just change a few things in the training. And so, Josh would have to repeatedly bring new hostile work environment claims under Title VII. And so, we sought an injunction going forward that you just can't impose mandatory EDI training that has, as its core, anti-white bias. 

 

Current posture: as I mentioned, we brought this case at the beginning of 2022. The district court dismissed the case in February of 2023. It held a few things. First, that no racial epithet was used against Josh. It did mention, of course, that the N-word was used. But it said that wasn't really about Josh. Just because it said that Josh thinks of all African Americans as the N-word, that isn't the same as using a racial epithet against the plaintiff.

 

And then it did something interesting because, as many of you know, on a motion to dismiss posture, you're not really supposed to consider facts. The well-pleaded allegations of the complaint are supposed to be taken as true. And the court decides whether the plaintiff has stated a claim. But the district court went out of its way and said, "Well, the historical context here is really important because the video is talking about redlining and the fact that there was racial discrimination before there was integration," and again, that using the N-word with reference to Josh doesn't connect to the historical context that most cases involve where there's an N-word and other racial epithets. 

 

A district court rejected the idea that there was really any effect on the workplace, that this was a one-time EDI training that just occurred in the spring of 2021. The training itself lasted maybe less than a workday. Maybe if you read all of the optional materials like the books, it would take longer than a day. But, generally, this was just one time that Josh took the EDI training. And then the district court ruled that there was no standing on our equal protection claim because Josh, although he seeks reinstatement, isn't working for the Colorado Department of Corrections because he resigned in December of 2021. 

 

So he doesn't have an injury that can be relied upon for trying to seek an injunction against future anti-white biased training materials. And then the district court did something interesting. We scoured her cases and found no other instance where she actually did this. She granted the motion to dismiss, and then immediately entered judgment and terminated the case. So she didn't grant leave to amend the complaint, although she dismissed without prejudice. So neither claim was dismissed with prejudice.

 

But she said, "I'm not granting leave to amend." And rather than even give you a week or two weeks to file a motion for leave to amend, the district court judge entered judgment. So, we've found other cases where judges say, "I'm not going to grant you leave to amend. I've dismissed the case. If you want to seek leave to amend, I'll give you 14 days or 30 days in order to file that motion, and if you don't then we'll enter judgment and close the case." But we found no other case where even that brief time period after the fact was not offered.

 

So, earlier this year, after the dismissal, we appealed to the Tenth Circuit Court of Appeals. We made a lot of arguments, but a couple of them involve what I just discussed, which is you're not supposed to take into account facts when you're deciding a motion to dismiss. The district court's historical context analysis was free-floating the idea that a judge would take evidence in their own opinion to say, "Well, yes, the N-word was spoken, but it doesn't really change anything because Josh was the victim of that, and Josh is white. And so, the N-word really relates to when you're calling an African American that word."

 

All of that we thought that those were factual arguments that the state is welcome to present at summary judgment or at trial and that there was a drastic effect on the workplace that we had said there's a culture of suspicion and distrust, that a prison setting is unique, and that, in many cases where courts have found that there is a hostile environment, those are settings where there's actually no life or limb at risk.

 

So, you might have a customer service worker who has a hostile environment claim because of the N-word being thrown around the workplace. But that's different than actually putting someone's life at risk, based on racial discrimination and the training. And then I'll talk about a few other narratives that we emphasized at the oral argument in a moment, but oral argument was held on November 17, just a few weeks ago. We had a terrific panel, as we always do on the Tenth Circuit. The panel was extremely attentive to all of the issues. And their decision will come out in the next few months. 

 

So, what were some of the key themes of our oral argument? Number one, we wanted to address how we could establish that there was workplace hostility, and that the workplace was changed, the working conditions were changed. That's that fourth element of the standard. And so, we relied on a few things. One was the fact that all of these statements in the EDI training and the nature of the training was that you had to believe it. So, it wasn't like a colleague throwing around an offensive racial epithet one day, or even a series of colleagues who might be on your level, maybe even a little bit above your level, insulting you, based on your race.

 

And this wasn't even really a supervisor. Because there's plenty of case law that says when a supervisor engages in making racial epithets, that's actually even a more racially charged environment and affects the workplace even more. Here, it's coming from corporate. Corporate is telling you these are the things that you need to hear about your race and your qualities as an individual, and that your colleagues will also hear about your race. At the same time — and I'll move down to F before I jump back up— there's a demand to believe in the training.

 

So, in the cases where, when a series of colleagues insult you based on your race, they don't ask you to believe that you are lesser because of your race, or less intelligent or of less worth or less value. Here, the employer itself was saying not only are we making statements about your race, but you have to believe them. You have to live them. You have to treat your colleagues differently because they've been treated differently based on historical oppression. You are perpetuating white supremacy as you go about your day as a white person.

 

And so, in no other hostile environment context do you actually have to internalize the beliefs about yourself as your employer tells them to you. And then we, of course, emphasized what I just said about how CDOC was relying on factual assertions. Similar to what the district court did, CDOC argued that this was really about racial equity, not discrimination, that employees were purportedly free to disagree with the training, and that many of the materials, the ones listed "other tools and resources" were technically not required.

 

And they made a comment like "This was just for people who were interested in learning more about equity and diversity, and so you can't really blame us for Josh making the decision to review these training materials because you didn't have to." And then we also want to talk about the interesting element here. The N-word was spoken in the training. It did say that white people think of black people using the N-word. And there are a number of cases that say even a single instance of using the N-word in the workplace changes the conditions of the workplace.

 

And I think the district court judge made an inference that says, "Well, yes, that's true, but only if the victim of the epithet is, themselves, an African American person." And that's an inference that I don't necessarily think is fair because that word is so charged that even if you accuse someone who's not African American of using that word, of thinking that word, that that really does change the qualities of the workplace. And then, of course, we talked about the Equity Continuum on G here, for the idea that Josh's colleagues were treating him based differently on race. There are plenty of Title VII cases that talk about context. And here, the prison context is very unique, which leads to H, the prison setting versus any other setting.

 

So, we really liked oral argument. We thought we had a good showing. The government did a good job also, making a number of points and talking about what the district court did in the case. We won't get a decision for a few months. But we're thinking that, if the case is reversed, that we have a good chance of going back to the district court, getting more discovery and at least getting to summary judgment and trial. And as far as I can tell, this is one of the earliest cases where a hostile work environment theory is truly based on the training materials themselves. 

 

Obviously, the racial epithet cases are more common. But here again you have corporate telling you about your race. And if there were any other race involved, if they were talking about Jews, "You do X, Y, and Z because of your Jewishness," or Asian Americans, "You think that you have a lot of merit, but it's really not based on your success. It's based on things that you aren't thinking about," this would be obvious that you have a hostile work environment. And then we also relied on a few cases involving some workplaces where a court had said, "We do think there's a hostile work environment."

 

One of my favorite cases to cite was a case involving two showings of a parody video involving Adolph Hitler from the movie Downfall, which, if you go online, you can see any number of parodies of this video. And because that video had been shown twice at a work conference, someone had been able to allege a hostile work environment under Title VII. So, we also talked about how, yes, the four elements are important. But it isn't as though courts are extremely strict when just evaluating at the motion to dismiss stage. 

 

      So, Sam, that is my presentation. I think we're at the 40-minute mark. I would love to talk through some of the questions we have from the crowd. 

 

Sam Fendler:  Yeah, absolutely. Well, thanks so much Will, for giving us a great presentation to begin with. As Will mentioned, we do have plenty of time for audience Q&A. And we have some that are in the queue already. But if you have a question, please enter it into the Q&A function at the bottom of your zoom window. Will, I want to begin by asking you about two very similar but distinct lenses of this case, if will, which is, on the one hand, the degradation to the work environment that you're talking about. It affects the cohesiveness of a team of guards.

 

And then, on the other hand, it creates a bad work environment for the individual, for your client. What importance do those two sort of different takes on the facts -- how important is that to your case? What are you arguing? I'm sorry that I'm being not so delicate with my words here. But do you understand what I'm saying? That you seem to be arguing that there is a degradation to the guards as a team, and then there's degradation to your client as an individual that are a result of this environment. What do you make of that?

 

William E. Trachman:  Yeah, I think it's both. So it's a great question. The Title VII case law, at the base level, says it has to affect the workplace. So, it can't just be that there was an insult in the workplace, you were offended, and you want to bring a lawsuit. There are plenty of cases that say, "You will not be able to walk into federal court based on mere straight insults in the workplace." Even if they're very offensive, you have to point toward a concrete change in working conditions. And so, here, what we wanted to point to was, number one, that the workplace of a prison setting is a very fragile workplace.

 

It isn't like a customer service department. Or, in one of the seminal cases in the Tenth Circuit, there was a brakeman working for Union Pacific. Maybe a high-stress job, but not a job where the racial tension of the workplace is going to affect life and limb. And so, what we said with Josh was, number one, Josh himself was degraded by having to view all these statements about him, having to not just read them but absorb them, believe them, act them out, and then also know that his colleagues, because every single person in the workplace had to review the same training and live it, including the equity continuum which says treat Josh differently based on his race.

 

And then, of course, there's the environmental factor which is if something is to happen, and I'm attacked by a prisoner and my colleagues live the training — as they are told to do, as they are supposed to do — my life is literally in danger. And so that's why Josh resigned in a matter of months. He took the training, noticed that it was affecting the workplace, that we had this culture of suspicion and distrust in the prison. That's why he filed the complaint. And he was hoping, at the very least, that the employer would investigate.

 

And when the employer said, "Not only are we not crediting your complaint, but we're not even going to investigate," that's when he knew he had to resign. So, generally, someone who's a star employee, being promoted twice in a matter of four years, doesn't just resign because they don't like the training. It has to actually affect the workplace. And so, that's what we pointed to, is that Josh had no choice but to resign in a matter of months. 

 

Sam Fendler:  Next question for you, Will, comes from one of our viewers. Pretty simple, "Would it be possible to get a copy of this slide deck?"

 

William E. Trachman:  Yes, absolutely.

 

Sam Fendler:  Great, how should they?  Should they email you?

 

William E. Trachman:  Why don't I send it to you. I noticed that there was a dupe slide. So why don't I take that slide out and I'll send it to you. And you're welcome to distribute it to anyone who wants. 

 

Sam Fendler:  Okay, wonderful. So, in that case, you should send us an email. You could probably just reply to the RSVP you got from Zoom when you signed up for this webinar. And we'll get in touch and get the slide deck over to you. Will, my next question is about the adoption by the state of a specific viewpoint.  You talked, especially at the beginning of your presentation, about these DEI materials that were being distributed by the state of Colorado. That's one of the things that, of course, bothers a lot of people and it makes an uncomfortable situation where the state, your employer, but, in this case, the state is adopting and promulgating a specific point of view. How does that factor into the case?

 

William E. Trachman:  Well, the state is allowed to promulgate its own point of view. The government has the government speech doctrine to protect itself. So it couldn't force Josh to, say, mouth the training, under certain doctrines. But, obviously, we aren't bringing a First Amendment case. We are talking about the Title VII area. So, the fact that the government has the right "to say certain things'' and the First Amendment doesn't prevent it from presenting a viewpoint or from even telling its employees what its viewpoint is and saying, "If you want to work here, you have to know that this is our viewpoint," that's different than Title VII.

 

So just because the government has a right to say certain things doesn't mean that it has the right to engage in race discrimination. And so, it's not just the direct race discrimination like demotion, reduction in salary. It's also this hostile environment. So, there's no reason why speech can't connect to a hostile environment.

 

Sam Fendler:  A related question here from our audience, Will, is "Do you think that these claims that are being brought in this lawsuit would be viable against a private sector employer under otherwise similar circumstances?"

 

William E. Trachman:  Yeah, it's a great question. Absolutely, I do. So, Mountain States Legal Foundation, where I'm the general counsel, typically doesn't bring cases against private employers. And so, this ended up being an example where we used Title VII, which applies both in the public and the private setting, against a government employer. We have a similar case in the District Court for D.C. involving the FAA using race as a factor in deciding how to gerrymander its pre-employment test.

 

But Title VII applies both in the public context and the private context equally. So, there are some minor differences in the regs and the way the statutes work. But, for the most part, a hostile environment claim works the same. So, there's no reason why these arguments couldn't be made by private counsel against a private employer. 

 

Sam Fendler:  Will, we have multiple questions relating to the First Amendment. One question about compelled speech, if perhaps your client was forced, if their speech is compelled. There are other questions about how the First Amendment relates, being that the employer here is the state government. Do you want to say more about if and how the First Amendment relates to your case?

 

William E. Trachman:  Sure. So, I think that's the natural inclination, is to think "Oh, is there a hook to compelled speech?" Because there might be some act that you have to do, based on the fact that you've taken the training. But the training itself doesn't force you to say anything. Now, I suppose you could say, "Look, as I express myself around the workplace, I have to follow the training." But then you end up getting into how much deference you have to give to an employer who generally has a right to control the conditions of their workplace.

 

And so, rather than get into the nitty-gritty about whether, number one, Josh was engaging in speech or expression, or the employer had some amount of deference because it's a government employer and they're allowed to maintain order and efficiency in the workplace, we wanted to focus more on the racial harassment aspect. So, I have seen cases, often involving schools, where as part of Equity, Diversity, and Inclusion training, a teacher has to express agreement with the training. And I know the Southeastern Legal Foundation has an Eighth Circuit case pending right now involving those circumstances.

 

I've also seen cases where students themselves have to say, "Because I am a white person, I have to acknowledge my privilege," where I agree that there's a compelled speech angle. Here, I wanted to focus more on the non-speech aspect, which is that any employer, no matter how much you force an employee to mouth agreement with these concepts, is engaging in Title VII race discrimination.

 

Sam Fendler:  Will, we have a couple questions about the unique nature of the prison setting. So, one question is "Where the state is involved, is the prison setting unique in the means that the state has at its disposal to achieve whatever its mission is?" And then, perhaps a broader question is "Can it relate to other public sector jobs or private sector jobs where the context is simply different than a prison where the mission is so unique and the racial tensions are so high, and there is precedent, even at the Supreme Court to say, 'Yeah, prisons are different'?"

 

William E. Trachman:  Yeah. So, what's interesting is that there's actually a Supreme Court case about whether prisons are different for the purpose of being able to engage in more race discrimination. It's called Johnson v. California. And in a 7-2 decision, the Supreme Court said that you don't get any extra leeway to engage in race discrimination as the government just because it's a prison setting. So, it's the flip side of what we're saying, which is that you have even less ability to engage in race discrimination here because of how dangerous that is.

 

      But in Johnson, the Supreme Court said strict scrutiny applies just as much in the prison setting as it applies elsewhere. Now, maybe you have unique circumstances like a race riot or racial gangs in a prison. And so, you can use that as a reason to satisfy the strict scrutiny standard, which involves whether the government has a compelling interest in engaging in certain conduct. But it doesn't change the strict scrutiny standard itself. You still have to meet the very high standard in the prison setting. 

 

      Now, the second question is interesting because, obviously, I want to win this case. Josh wants to be back in his job in the prison setting. And so, we've taken the facts as they are. We obviously understand that the prison setting is unique. But I would prefer that this be a precedent for all workplaces that you can't engage in this offensive racial stereotyping anywhere. So, whether you're a brakeman or a customer service assistant, I think it would be a shame to have some sort of dividing line where in the prison you get the right not to be made fun of and insulted based on your race. But if it's not a dangerous place then it's open season for employers.

 

So, I hope if the Tenth Circuit rules in our favor it's a broad ruling that says employee training like this creates a hostile work environment in any context. Yes, the prison setting, because of the nature of being at risk of life and limb, the idea that racial tension is just inherently part of the job. But I would prefer that the precedent apply more broadly to all workplaces in other contexts. 

 

Sam Fendler:  Will, we have a great question here from one of our audience members, who asks, "What, in your opinion, was the best argument, independent of the extent to which you agree only on the merits, raised by the government's lawyers?"

 

William E. Trachman:  It's an interesting question. So, at the oral argument, I think that they did a good job talking about some of my cases.  So, I mentioned this parody video involving Adolph Hitler in Downfall, and the fact that it was shown in a workplace. And so, they pointed out in those cases the person who complained was a Jewish American man whose family were victims in the Holocaust. And so, you generally have to point out why someone is particularly susceptible to having a change in the workplace.

 

But I don't agree with that argument as much as I thought that they did a good job presenting it. Because, here, the insult is just as offensive to Josh. But even in that situation where they're playing a Hitler video, no one is telling the employee "Hitler was right." No one's telling the employee's colleagues, "Your Jewish colleague is lesser," or "deserves to be insulted," or that Hitler did the right thing by rounding them up. So, there's a difference between even that very offensive situation and the worse situation where Josh is being told, "You are this way."

 

And that's part of your employer training. It's coming down from corporate. And you can't not believe it. And so, when the government said, "This was all optional. You're welcome to disagree," I really didn't think that was persuasive, to be honest, because we were able to point back to the training that says, "You must agree, and, in fact, if you don't agree, that's just evidence of your white fragility. It's evidence that you have “fakequity” because you won't acknowledge your role in white supremacy. So, there were some arguments I wasn't persuaded by. But the argument that you need to really go through the facts of these cases, I thought, at least came across well as an initial matter. 

 

Sam Fendler:  Will, I want to ask you — of course, as I like to say, it's always a fraught business, but it's interesting — what was your sense of how oral argument went when you left the court?

 

William E. Trachman:  So, I felt very good. Although, you never know what's going to happen, in terms of winning or losing. The thing that you really want is judges who have read the briefs and who are asking the right questions. And so, we walked out very pleased, as we always are, honestly, with the Tenth Circuit. They just have a great bench. I clerked on the Tenth Circuit and the judges are just in tune with the arguments. 

 

So, they pinpointed both the spots in my argument that they wanted to ask questions and then also the government's areas. There was some dispute about whether the glossary that I went through at the beginning was really part of the mandatory training. And at the end I just pointed towards the government's brief that says, "This glossary is used in reference for the mandatory training." So, it really didn't make a big deal to me whether it was stamped with the word "mandatory" on it.  Obviously, it's there.  It's part of the mandatory training.  It's to be used as you go about the modules.

 

So, I thought that they ended up interpreting that argument well, although you're really reading tea leaves when you're looking at judges and seeing what they nod at and what they take notes at. But the most I'll say is that I thought that they were very attentive to both sides' arguments, and I look forward to reading their opinion.

 

Sam Fendler:  We have several questions in the queue about the value of DEI training, about the effectiveness of the training in this case, in particular. Is there any part of your case, or maybe Mountain States' larger view of it, that discusses what good DEI training is? Or do you say anything about how things could be different? Or is the argument just that this creates a hostile work environment and you're leaving it at that?

 

William E. Trachman:  Well, I think all of us have taken good workplace training, whether it's getting along with your colleagues or not engaging in sexual harassment or non-discrimination training. And so, I think there's a definite role and employers have some leeway in terms of making sure that they create a welcoming workplace for their employees. They want to retain employees. They don't want to risk lawsuits or risk losing employees who feel like they can't be comfortable in the workplace.

 

But there's a difference between non-discrimination on the one hand — which is treat all your colleagues alike and maybe even with colorblindness — and then, affirmatively describing how each person is, based on their race. And so, I could see diversity training that I object to, which I don't think is very helpful or productive, and nevertheless is legal. Here, this is the most aggressive Diversity, Equity and Inclusion training I've ever seen in my tenure as a civil rights attorney. And so, I don't think it gets any worse than this. At least, not that I've seen. So, there's a big middle ground. And there's even some training that I would be fine with if it's really about non-discrimination and legal compliance. 

 

Sam Fendler:  Well, Will, this has been a tremendous presentation. Again, we really appreciate you joining and giving us your time. We have probably about a minute and a half left and I want to ask if you have any parting thoughts for the audience. Is there anything you want to leave us with?

 

William E. Trachman:  Yeah, just one tidbit for those of you in the education space. So, the Department of Education issued an annual report in 2021 that I was able to use in the briefing that says if you are engaged in making sweeping racial generalizations about students or teachers you are running afoul of Title VI, which is an education statute that is a lot like Title VII. And then, after SFFA came down, there was a concurrence by Justice Gorsuch that said, really, Title VI and Title VII are similar in text and statutes.

 

And he was talking about affirmative action as it relates to the SFFA decision and Bostock. But I was able to use that to say, "A-ha. If it's true in the education context that making sweeping racial generalizations is a Title VI violation, it ought to also be true in the Title VII case. So, I thought that was a fun tidbit. And there's always a little bit of creativity that you can bring to your oral argument. So I'm glad that I was able. I also want to thank you, Sam, and all the people who came to the webinar today.

 

 

Sam Fendler:  Excellent. Well, again, Will, on behalf of The Federalist Society, I want to thank you for the benefit of your time and your expertise today. To our audience, I want to thank you as well. We greatly appreciate your participation. Please check out our website fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in. And we are adjourned.