By Joseph C. Pettygrove
Over the last few months, critical race theory has made headlines across the country, mostly in the context of debates about precollege public education curricula. Simultaneously, media reports have reflected an increasing trend of employers providing some form of CRT training in the workplace. CRT-focused trainings raise legal and practical issues in the employment context. These have been reflected in recent high-profile instances in which prominent employers such as Coca-Cola and Disney have (allegedly) implemented CRT-based workplace training followed by explanations and at least one apology after employee and public outcries.
I disclaim any CRT “expertise,” and I disclaim any intent to stake out in this article whether CRT is “right or wrong” or “good or bad.” But as an experienced employment lawyer, I see both challenges and lessons for those employers considering or implementing CRT-based trainings in the workplace.
Critical race theory background
Again, I am no expert, but I note and emphasize that the “T” in CRT stands for theory. A key tenet of this theory is that race is a social construct, not a biological or natural phenomenon, and that the term was invented and applied historically by Caucasians to obtain and maintain majority status (Janel George, A Lesson on Critical Race Theory, American Bar Association). CRT further holds that the artificial construct of race is built into American institutions, traditions, laws, etc. Id.
Like most theories, CRT originated in academia and is the subject of an entire field of scholarship. Id. There’s depth, breadth and complexity to it. Most business owners, managers and employees are not scholars, nor do they want to be (at least not while they’re at work). They want to get customer orders fulfilled, finish their projects and reports, reel in new clients and otherwise hit their existing goals and metrics. Subjects that don’t have an immediate and obvious connection to those top-of-mind pursuits often are perceived as a distraction at best and an obstacle at worst. A CRT scholar may say that hesitance or resistance is itself a manifestation of institutionalized privilege, and that may be true (though I’ve seen many workers roll their eyes at workplace safety training too). My only point here is that many workforces have a “threshold” resistance to much (most?) training even before considering the subject matter.
Workplace antidiscrimination/EEO law and recent high-profile incidents
Title VII (and state/local equivalents and Section 1981) are widely known and understood as prohibiting race-based decisions and treatment in the workplace, regardless of whether such discrimination is directed at minorities or majorities. Supreme Court precedent and EEOC guidance recognize that it’s unlawful to treat an employee badly based on stereotyped beliefs about their protected category and that “reverse discrimination” and “same-race discrimination” are just as unlawful as “majority-against-minority” discrimination (EEOC Compliance Manual). For decades, the American workforce has been trained on and otherwise exposed to the idea that employers can’t consider an individual’s race in employment. Courts also have recognized that certain forms of carefully tailored race-based affirmative action are permissible, but the scope of that exception to the general prohibition remains unclear and widely misunderstood and/or unknown, especially by nonlawyers and nonscholars (i.e., the average American worker).
Contrast that to recent reports of employers implementing work-based trainings focused on or somehow associated with CRT. For example, one presentation slide attributed to a presentation for Coca-Cola employees states: “Try to be less white.” Another explains, “To be less white is to: be less oppressive; be less arrogant; … be less ignorant; [and] be more humble.” Materials attributed to a Disney employee presentation states that equal opportunity is insufficient, “equitable” individual outcomes should be sought instead and leaders should reflect on America’s “racist infrastructure.” With examples like these making news, it’s easy to see how employees (especially those already disinclined to engage in training) may react to discussions of CRT principles with a sense of resistance because it feels contrary to the training and messages they’ve received for years emphasizing color blindness in the workplace.
CRT proponents more versed in the theory than I may explain that these examples aren’t accurate, full or fair characterizations of CRT or its principles (George, supra, at n.3). But the above examples reflect at least two real-world instances in which a version of “CRT-associated” trainings led to backlash and resistance from its workforce — not to mention publicity that may create resistance in other workforces.
One critical component of effective employee training is at least trying to anticipate areas of foreseeable confusion or misunderstanding (whether genuine or feigned) and then avoiding or being prepared to address them effectively. The materials attributed to Coca-Cola and Disney’s trainings (and employee/public reaction to them) suggest that’s not being done in all cases. In any event, workers who believe their employer treats or plans to treat them differently based on their race have ample theories available to fuel employment law claims, with all the attendant costs, risks and disruption.
There are lawful ways for employers to talk to employees about race, especially as a historical and current social phenomenon (indeed, that is somewhat commonplace nowadays in carefully drafted, legally compliant Diversity, Equity and Inclusion initiatives). Where CRT (or, at least, certain of its proponents) clashes with current U.S. workplace law is in advocating for prospective race-based differential treatment, and especially in any message that sanctions or urges negative group stereotypes as a justification for negative treatment of individuals. One leading CRT theorist explains that treating people differently on the basis of race is “anti-racist,” not “racist,” as long as it creates “equity” (Ibram X. Kendi, How to Be an Anti-Racist 18 (2019). “The only remedy to racist discrimination is anti-racist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” Id. At 19. Such messages practically beg for resistance, publicity and legal claims. Employers who want to include CRT in employee training or education while also minimizing risks of EEO claims (or internal workplace strife) might consider:
• Making participation (truly) voluntary, not mandatory.
• Making it part of a broader training curriculum that specifically includes alternative theories (that are consistent with EEO law).
• Emphasizing clearly — verbally and in writing — that any racial theory presented to employees is just that: a theory. Further, explain that such theory(ies) are shared in the interests of exploring diversity of thought and experience, not official company position or employment policy. Reiterate that the company treats employees as individuals without regard to protected categories, in accordance with its EEO policy.
If nothing else, give at least one knowledgeable employment lawyer a meaningful opportunity to carefully review and comment on training before presenting.•
• Joe Pettygrove is a partner at Kroger, Gardis & Regas, LLP. Opinions expressed are those of the author.