*Macy Hamlett
I. Introduction
In Chislett v. New York City Department of Education, the Court of Appeals for the Second Circuit recently held that mandatory implicit bias training may give rise to race-based hostile work environment claims.[1] With the Second Circuit’s decision strengthening claims, the surge of hostile workplace cases centered around Diversity, Equity, and Inclusion (DEI) initiatives have the potential to survive the summary judgment stage.[2] Chislett represents a shift in the legal framework of race-based hostile work environment claims and DEI.[3] This rapid change stems from the Supreme Court’s June 2025 decision in Ames v. Ohio Department of Youth Services and recent actions from the Equal Employment Opportunity Commission (EEOC).[4] The guidance from the Supreme Court and the EEOC has led to unchartered waters for employers and lower courts.[5]
II. Rapidly Changing Field
A. Ames Opinion
On June 5, 2025, the Supreme Court issued its opinion in Ames, holding that Title VII applies equally to all persons, no matter their status as a member of a “majority-group” or “minority-group.”[6] Marlean Ames, a heterosexual woman, worked for the Ohio Department of Youth Services (hereinafter agency) since 2004, earning promotions all the way up to a program administrator.[7] In 2019, Ames applied for a new management position, but the agency hired a lesbian woman for the role.[8] A few days after her interview for the position, the agency demoted her to an executive secretary—the position she was hired for in 2004—and hired a gay man to fill her now vacant position.[9] Ames filed suit under Title VII alleging sexual orientation discrimination.[10] The District Court for the Southern District of Ohio granted summary judgment in favor of the agency.[11] The Court of Appeals for the Sixth Circuit affirmed, stating Ames had failed to show “background circumstances to support the suspicion that the [agency] is that unusual employer who discriminates against the majority.”[12] The Supreme Court held that the “background circumstances” test disregarded Title VII’s lack of “distinctions between majority-group plaintiffs and minority-group plaintiffs.”[13] The Supreme Court remanded for application of the proper prima facie standard.[14] Accordingly, the Sixth Circuit then vacated the district court’s judgment and remanded for further proceedings consistent with the Supreme Court’s opinion.[15] With this holding, the Supreme Court eliminated the need for majority group plaintiffs to show “background circumstances” thereby reducing their evidentiary burden to one more closely aligned with that faced by minority group plaintiffs.[16]
B. EEOC Guidance
Even before the Supreme Court issued its opinion in Ames, the EEOC published “two technical assistance documents” addressing unlawful discrimination arising from workplace DEI initiatives.[17] The EEOC reminded readers, in its guidance, that DEI is “a broad term that is not defined in Title VII.”[18] The guidance explicitly stated that DEI initiatives may be unlawful under Title VII if the initiatives involve an “employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”[19] Further, the guidance denied Title VII’s application only to minority groups.[20]
C. Second Circuit’s Opinion in Chislett
Leslie Chislett served as Executive Director of the “AP for All” program within the New York City Department of Education’s Office of Equity & Access, where she supervised fifteen employees.[21] Early on in her role, Chislett felt “racial tension” inside and outside her team.[22] During her tenure, she participated in bias trainings where instructors referenced the “values of [w]hite culture are supremacist[,]” had executive directors declaring “[t]here is white toxicity in the air[,]” and was singled out by co-workers in a fifteen-minute confrontation at a staff retreat.[23] Throughout the course of her employment, Chislett continued to express her concerns with management, many of which were shared by her white co-workers, yet her concerns were consistently ignored.[24] Chislett resigned and brought suit under Section 1983, asserting race discrimination.[25] The district court granted the department’s motion for summary judgment.[26]
The Second Circuit reversed the dismissal of Chislett’s hostile work environment claim, holding that a reasonable juror could find there were “racially-charged statements expressed during trainings, in meetings, and about another employee in her presence.”[27] The court noted it was not ruling implicit bias trainings as being “per se racist[,]” but instead when they are conducted in a manner to “discuss any race ‘with a constant drumbeat of essentialist, deterministic, and negative language [about a particular race], [employers] risk liability under federal law.’”[28]
III. Current Status of Cases Pending
The Second Circuit is not the only court to be faced with these issues, as both the Ninth and Third Circuit currently have related matters pending before them.[29] In the Third Circuit, Zack De Piero, a white man who worked as a writing professor at Pennsylvania State University, is appealing the dismissal of his hostile work environment claim.[30] In the Ninth Circuit, Joshua Diemert, a white man who worked for Seattle’s Human Resource Department, is appealing the grant of the City’s motion for summary judgment.[31]
IV. Conclusion
With the EEOC and Supreme Court affirming that Title VII applies to all classes of people, and the Second Circuit suggesting that DEI workplace trainings may create a hostile work environment, the legal landscape is poised for change.[32] The language used by the Second Circuit may provide persuasive authority for other jurisdictions to evaluate hostile work environment claims involving DEI trainings.[33] Numerous appellate cases could divide courts on interpretations of DEI training, but one thing is clear: Employers must address workplace concerns or risk liability.[34]
*Macy Hamlett is a second-year student at the University of Baltimore School of Law and a Staff Editor for Volume 55 of Law Review. Macy is a member of Honor Board, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, a UB LEADS Mentor, and a Law Scholar for Property. In the summer of 2025, Macy worked as a Summer Associate for Baker, Donelson, Bearman, Caldwell & Berkowitz PC. This summer, she will join DLA Piper LLP (US) as a Summer Associate in their Baltimore office.
[1] Chislett v. N.Y.C. Dep’t of Educ., 157 F.4th 172, 191 (2d Cir. 2025);see also Khorri Atkinson, Implicit Bias Training Ruling Gives Anti-DEI Plaintiffs Foothold, Bloomberg L. (Oct. 2, 2025, at 05:15 ET), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/BNA%2000000199-9adc-d6ea-a1f9-dbdc34a90000 (explaining how Chislett offers “new leverage to bolster allegations from workers challenging diversity initiatives on similar grounds.”).
[2] See infra Part II.
[3] See generally Patrick Dorrian, White Athletic Director Lacks Bias Suit over Administration Jobs, Bloomberg L. (Oct. 20, 2022, at 18:17 ET), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XALAU8IC000000#jcite (discussing Seventh Circuit’s affirmance of the district court granting summary judgment against a white athletic director in Groves v. South Bend Cmty. Sch. Corp., 51 F.4th 766 (7th Cir. 2022)).
[4] See infra Sections II.A–B.
[5] See infra Part II.
[6] Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 309 (2025) (“Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”).
[7] Id. at 306.
[8] Id.
[9] Id.
[10] Id.
[11] Ames v. Ohio Dep’t of Youth Servs., No. 2:20-cv-05935, 2023 WL 2539214, at *9 (S.D. Ohio Mar. 16, 2023).
[12] 605 U.S. at 306–07 (quoting Ames v. Ohio Dep’t of Youth Servs., 87 F.4th 822, 825 (6th Cir. 2023)).
[13] Id. at 309–11.
[14] Id. at 311–13.
[15] Ames v. Ohio Dep’t of Youth Servs., No. 23-3341, 2025 WL 2554965, at *1 (6th Cir. Sep. 2, 2025).
[16] See supra note 6at 307–08.
[17] Press Release, U.S. Equal Employment Opportunity Commission, EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination (Mar. 19, 2025), https://www.eeoc.gov/newsroom/eeoc-and-justice-department-warn-against-unlawful-dei-related-discrimination.
[18] What You Should Know About DEI-Related Discrimination at Work, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work (last visited Oct. 18, 2025).
[19] Id.
[20] Id. (answering in the negative to “Do Title VII’s protections only apply to individuals who are part of a ‘minority group’. . . ?”).
[21] Chislett v. N.Y.C. Dep’t of Educ., 157 F.4th 172, 178–79 (2d Cir. 2025).
[22] Id. at 179.
[23] Id. at 180–83 (citations omitted) (“Several of Chislett’s Caucasian coworkers began to perceive the environment as hostile.”).
[24] See id. at 180–83.
[25] Id. at 183.
[26] Id.
[27] Id. at 190.
[28] Id. at 191 (quoting De Piero v. Pa. State Univ., 711 F. Supp. 3d 410, 424 (E.D. Pa. 2024)).
[29] See Notice of Appeal, De Piero v. Pa. State Univ., No. 25-0152 (3d Cir. Mar. 16, 2025) [hereinafter De Piero Notice of Appeal]; Notice of Appeal, Diemert v. City of Seattle, No. 25-1188 (9th Cir. Feb. 25, 2025).
[30] See De Piero Notice of Appeal, supra note 29; De Piero v. Pa. State Univ., 769 F. Supp. 3d 329, 333, 357 (E.D. Pa. 2025) (finding “no reasonable jury could determine that the twelve incidents . . . warrants his hostile work environment claims to go to trial.”).
[31] Diemert v. City of Seattle, 776 F. Supp. 3d 922, 951 (W.D. Wash. 2025) (finding an “isolated incident is not enough to show a ‘longstanding practice or custom’ of exclusion” (citation omitted)).
[32] See supra Part II.
[33] See supra Section II.C; Chislett, 711 F. Supp. 3d at 191 (holding that when implicit bias trainings address “any race ‘with a constant drumbeat of essentialist, deterministic, and negative language [about a particular race], [employers] risk liability under federal law.’” (quoting De Piero v. Pa. State Univ., 711 F. Supp. 3d 410, 424 (E.D. Pa. 2024)).
[34] See supra Section II.C, Part III.
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