Case Study: Employee Challenges DEI Training Video—But Neglects to Watch It

In recent months, many employers have faced increased scrutiny of and challenges to their diversity, equity, and inclusion (DEI) initiatives, including claims that the programs amount to “reverse discrimination.” In a recent decision, the U.S. Court of Appeals for the 7th Circuit (which covers Illinois, Indiana, and Wisconsin) rejected an employee’s reverse discrimination claim under federal and Illinois law and provided a helpful road map for employers seeking to defend against these lawsuits.

Rebel Without a Cause

Charles Vavra, who is white, worked for Honeywell International, Inc., in a business unit headed by John Waldron. In September 2020, just months after the nationwide protests spawned by George Floyd’s killing by police officers in Minneapolis, Waldron sent an email to all of his employees, including Vavra, in reaction to a grand jury’s decision not to indict police officers involved in a black woman’s death.

He wrote, “Racial bias is real. Don’t kid yourself. Each of us has unconscious bias within us.” He promised that his business unit would “take tangible actions to make a difference,” including “upping our game when hiring ensuring 100% of the time that the interview panel and candidates are diverse.”

Weeks later, Honeywell’s DEI office initiated an unconscious bias awareness program that included mandatory unconscious bias training for all employees. The training consisted of 20 to 30 minutes of videos concerning different unconscious bias scenarios, followed by a quiz. Honeywell mandated that employees complete the training by February 25, 2021.

Vavra refused to watch the videos. He contended that Waldron was “making his non-white colleagues all victims and turning his white colleagues . . . into villains” and that neither “John Waldron nor anybody else gets to tell me I have unconscious bias.” He also wrote, “I AM NOT taking this training because it’s a joke, and I’ll use John Waldron’s email as proof of it.”

After further requests and warnings by Honeywell imploring Vavra to view the videos, he responded, “Whatever the consequences are of that decision [to refuse], I will accept.” He also stated that he “found John Waldron’s [September email] incredibly offensive, discriminatory and racist” and asked that the email be “considered an ‘official’ discrimination claim.”

In April 2021, Honeywell offered Vavra one final opportunity to complete the training and informed him that his employment would be ended if he failed to do so. He again refused, and Honeywell fired him. After the discharge, he sued Honeywell for retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act (IHRA).

Biggest Loser

The district court rejected Vavra’s claim, and the 7th Circuit agreed. As the 7th Circuit explained, to establish retaliation, he needed to prove that:

• He engaged in protected activity.
• He suffered an adverse employment action.
• A causal link existed between the protected activity and the adverse action.

In rejecting the retaliation claims, the 7th Circuit separately addressed the two underlying incidents: the mandatory training videos and Waldron’s email.

For the training videos, the 7th Circuit concluded that Vavra’s opposition to the training didn’t amount to a “protected activity” because he didn’t have an “objectively reasonable belief” that the training violated the law. Although he assumed, based on Waldron’s email, that “the training would vilify white people and treat people differently based on their race,” the 7th Circuit emphasized that he “never accessed the training or otherwise discovered what it entailed.”

Because his opposition to the training was therefore “purely speculative,” the 7th Circuit found he had no objectively reasonable belief that the mandatory training violated Title VII or the IHRA. His purely speculative presumption about the training’s content didn’t amount to an objectively reasonable belief.

The 7th Circuit also rejected the claim with respect to Waldron’s email. The court wrote that even assuming Vavra’s complaints about the email amount to a “protected activity,” they didn’t cause his discharge.

As the 7th Circuit explained, Honeywell “earnestly and repeatedly sought Vavra’s compliance with the training requirement,” and it was his refusal to comply with the company requirement—i.e., his insubordination, not complaints about Waldron’s email—that led to the discharge. Vavra v. Honeywell International, Inc. No. 23-2823 (7th Cir., July 10, 2024).

Back to School

The 7th Circuit decision offers several lessons for employers—some straightforward and others less so.

Document interactions. Most employers know about the importance of documenting employee interactions, and the Vavra decision reminds us why. The case turned in part on the reason for the employee’s discharge, and the employer prevailed largely because it produced substantial written evidence showing that the failure to follow company policy (i.e., complete a required training) led to the discharge.

Because HR and other employees are often very busy, you should implement streamlined processes for managers and HR professionals to document key interactions.

Provide warnings. Although some employee conduct warrants immediate discharge, the best approach is often to provide employees warnings before a discharge. Doing so not only increases the documentation supporting a discharge but also allows you to evaluate any explanation employees might offer for their conduct. If Vavra was unable to watch the videos because of a purported disability, for example, his employer needed to know that.

Communicate thoughtfully. Although Waldron’s email was almost certainly well intentioned, the email appears to have been impulsive—an impassioned reaction to a news event—and may have committed the company to unrealistic targets regarding candidate diversity. Managers must know that emails can expose the company to substantial liability and expensive litigation, so they should carefully consider their communications, particularly on sensitive topics like race.

Behavior vs. beliefs. DEI trainings and associated policies should focus on employee behavior, not beliefs. You may ask employees to acknowledge that they attended a training, that they understood its contents, and that they’ll abide by the training’s policies. But you shouldn’t require employees to attest to their agreement with the content.

This distinction—between understanding and agreement, behavior, and belief—may avoid disputes with employees who might otherwise claim reverse discrimination.

Audit DEI initiatives. More broadly, you should audit your DEI initiatives, particularly in light of the Supreme Court’s 2023 Students for Fair Admissions, Inc.affirmative action decision (which doesn’t directly apply to private employers but warrants attention). Among other things, you should consider phasing out race-based targets in favor of holistic assessments of job candidates. You should also ensure affinity groups are open to all those concerned about the underrepresented group (even if they don’t fall within the group).

Much more could be said, and we encourage you to carefully evaluate your DEI initiatives to ensure compliance with applicable law.

We expect DEI challenges and allegations of “reverse discrimination” to continue to proliferate, so it’s essential to develop policies and practices to promote compliance with the law and limit your exposure in this growing sphere of litigation.

David Levine is an associate in Fox, Swibel, Levin & Carroll, LLP’s employment law and litigation groups and can be reached at dlevine@foxswibel.com.

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