Compliance Check-In: DEI Training Programs Should Be Low Risk, but Pay Attention to the Content

At this point, all employers should be aware of the heightened risks arising from maintaining DEI programs in the age of President Trump. As we have discussed, the EEOC is increasingly focused on protecting majorities, rather than traditionally marginalized groups. This has led directly to significant settlements based on allegedly unlawful DEI practices. 

However, not all DEI-adjacent programs and strategies are created equal. Some — especially those that tie specific outcomes to applicants’ or employees’ race, sex, or other demographics — pose significant practical risks. But other programs should generally remain low-risk and in the toolbox of potential tools that employers can use to promote an inclusive workplace.

Training on DEI topics should fall into the latter low-risk bucket. When done right, training programs promote belonging and understanding, encourage dialogue, and serve as powerful evidence of an employer’s commitment to equal opportunity. But when done wrong, they can create real legal risk.

As we approach the 2026 midterm elections and the midpoint of President Trump’s second term, it’s a good time to assess what separates a good training program from a bad one.

Takeaway #1: Most Training Programs Will Not Create a Hostile Work Environment

We are now several years into the phase of employee lawsuits alleging that training programs violate their rights. Most courts have decisively dismissed those lawsuits. 

Most commonly, these lawsuits allege that a training program creates or contributes to a racially hostile work environment. For example, an employee of the Colorado Department of Corrections alleged that a “training program addressing racial sensitivity and the historical suppression of racial minorities” was unlawful. To support his claim, he pointed to the discussion of topics such as “white fragility” and “white exceptionalism” and noted that the training directed leaders “to treat employees differently based on race.”

Despite these claims, the Tenth Circuit Court of appeals dismissed the employee’s hostile work environment claim. In doing so, the court focused primarily on the high standard that employees need to meet to show a hostile work environment: namely, the workplace must be “permeated with discriminatory intimidation, ridicule, and insult.” Even if the training materials included racially insensitive commentary, they couldn’t meet this high standard.

Takeaway #2: Employers Can Discipline Employees Who Refuse to Participate in Training

In another case, an employee refused to participate in unconscious bias training because he believed that it contained offensive and racist concept. After he was terminated for refusing to participate in the training, he claimed that his termination was in “retaliation” for his “opposition” to unlawful activity. 

The Seventh Circuit Court of Appeals rejected this claim. In doing so, it noted that , conduct can be “protected activity” only where the employee has “a objectively reasonable belief that the action he opposed violated the law.” In this case, the employee never accessed the training and did not know its contents. Accordingly, there was no way that he could have had a reasonable belief that the content of the training was unlawful. As a result, he did not engage in “protected activity,” and the employer’s decision to discharge him was not retaliatory.

Takeaway #3: The Content of the Training Matters

Not all legal challenges to DEI-adjacent training have been unsuccessful. In one case, a federal court of appeals concluded that there were sufficient “racist comments” expressed during a training session that a jury could conclude that the training created a hostile work environment. 

So what were the differences between that case and the others? In that case, an employee alleged that the training was full of racially hostile content and actions, including:

• Comments such as “values of white culture are supremacist,” “there is white toxicity in the air, and we all breathe it in.”
• Repeated references that “white culture is generally defensive, entitled, paternalistic, and privileged.” 
• Physical segregation of employees by race at one of the training sessions.
• The employee was personally singled out: “instructors told [the employee] that her interest in excellence was perfectionism and consistent with white supremacy.”

Based on this and other content, the Second Circuit Court of Appeals concluded that “a rational juror could find that [the employee] experienced a racially hostile work environment.”

The different outcomes in these cases shine a light on the risks to employers who conduct DEI-adjacent training programs. Employers shouldn’t be afraid to train employees, but they must monitor the content (and the trainers!) to ensure that they stay within reasonable parameters. Please contact your Foley attorneys to discuss how to color inside those lines and manage your risk.