Does OU diversity training violate federal labor law?
February 4, 2021
The University of Oklahoma may be flirting with lawsuits alleging that they have created a hostile work environment with mandated diversity training material if that material blames white males for most of society’s injustices, according to an attorney who specializes in labor and employment law.
“Diversity training is important but it can be many, many things,” noted Gregory Kamer, who has practiced labor law in Las Vegas, Nevada. “My firm even does diversity training. But too often today we see training that makes white males feel guilty for being white males.”
Kamer said such programs “can create a hostile environment” for employees who are required to take the training, as all faculty and staff members at OU are, along with new students.
Kamer said two practices can open an employer to a federal lawsuit. One, well known to most people, involves disparate treatment of employees, as when workers are hired, promoted, or fired based on sex or race. The second involves creating a “severe and pervasive” atmosphere perceived as hostile, which “makes an individual uncomfortable in the workplace.
“If you compel someone to think a certain way that can constitute a hostile environment,” Kamer said. Some of the content of the OU diversity program appears to do precisely that.
The mandated OU course contains written and video modules that often have just one acceptable answer. Those answers are often in accordance with doctrines put forth by advocates of critical race theory, the more radical approach to diversity.
The OU program is provided by Everfi. That company’s website advertises its diversity course as one where “students will learn about key concepts related to identity, bias, power, privilege, and oppression.” Who is doing the oppressing? It’s often white males.
Kamer said some universities have already faced lawsuits for diversity programs where “they make people get down on the floor and apologize for being white. This is more like the cultural revolution in China. It’s not America.”
Such practices as forcing employees to don rainbow badges or Black Lives Matter buttons are also elements of a hostile work environment, he said.
The OU program has a pre-course survey where participants are asked to check off “the following types of bias at my school.” The list includes sexism, racism, homophobia, transphobia, and others.
Another question asks “how am I privileged?” Privileged groups, we learn, often have power over oppressed groups. There is much language that separates people into victim and oppressor categories.
We are never, we learn, to “misgender a person based off of how they present, without confronting their preferred pronouns.” So an OU cheerleader in a skirt should always be asked his/her preferred pronoun.
There are examples of “colorism,” with “people of color” being oppressed, and “microaggressions” which are the kind of interactions most people would consider trivial and non-offensive.
But as Kamer notes, some diversity training appears to dwell on differences and grievances to the point of obsession. That, he suggests, is where legal liabilities for creating a hostile work environment could come into play.
OCPA began examining OU’s diversity program after President Donald Trump issued an executive order prohibiting the distribution of federal funds to agencies and institutions that stereotype or categorize groups—in most cases by throwing a blame blanket over white males.
At that time, OU spokeswoman Kesha Keith said the university’s program did not violate that order. Asked to provide a copy of the diversity-training materials, she said it would be necessary to file an open records request, which OCPA did on Oct. 20, 2020.
OU acknowledged receipt of that request but has not provided the materials as of Feb. 4, 2021. OCPA obtained the materials independently.