By Jamila M. Brinson, Dawn S. Holiday, and Ariel Perez

On September 25, 2025, the U.S. Court of Appeals for the Second Circuit issued a significant decision in Chislett v. New York City Department of Education et al, partially reversing summary judgment and allowing a hostile work environment claim to proceed to trial.

The court held that a White employee’s claim arising from mandatory implicit bias training could survive summary judgment where the training and subsequent conduct repeatedly characterized “white culture” as “paternalistic” “entitlement- access to everything” and “supremacist.” Although the court affirmed dismissal of demotion and constructive discharge claims, it found that “a constant drumbeat of essentialist, deterministic, and negative language” messaging could constitute race-based harassment actionable under 42 U.S.C. § 1983’s Equal Protection Clause framework (applying the Title VII “severe or pervasive” standard).

This marks a notable development in the growing intersection between DEI initiatives and federal anti-discrimination law. The decision underscores that implicit bias training is lawful, but content and implementation matter, particularly when training or workplace spillover uses racially essentialist and negative descriptors, and management fails to act on complaints. Importantly, the court emphasized that it was not deeming implicit bias or DEI trainings per se unlawful; rather, liability risk arises from the way trainings are designed and conducted.

Case Background and Core Allegations

Leslie Chislett, a White former Executive Director in the New York City Department of Education’s Office of Equity & Access (DOE), brought suit against the DOE and its Chancellor under 42 U.S.C. § 1983, alleging a racially hostile work environment stemming from mandatory implicit bias trainings and related workplace communications, as well as claims for demotion and constructive discharge. The district court granted summary judgment to the defendants on all claims, concluding that the plaintiff failed to demonstrate the existence of a municipal policy linked to the demotion, hostile work environment, and constructive discharge. Notably, the district court did not reach the merits of whether the environment was objectively hostile; it disposed of the claim on municipal policy/custom grounds. The Second Circuit revived the hostile environment claim because there were triable issues on whether a municipal policy or custom of inaction existed under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

The record reflected repeated statements that “white culture’s values” are “supremacist,” and that traits such as “individualism,” “objectivity,” defensiveness,” “perfectionism,” and “sense of urgency” were components of “white supremacy culture.” Facilitators reportedly said that “there is white toxicity in the air, and we all breathe it in,” and instructed white employees to “step back and yield to colleagues of color.”

When Chislett objected to or questioned these frameworks, coworkers labeled her “fragile” or “racist,” and supervisors took no corrective action despite multiple complaints.

The Second Circuit held that this combination of racially essentialist^[1] training content, peer hostility, and managerial inaction could satisfy the “severe or pervasive” standard for a hostile work environment claim under § 1983.

The Second Circuit’s Ruling

The Second Circuit vacated summary judgment on the hostile work environment claim, finding that a reasonable jury could conclude the conduct was sufficiently severe or pervasive to alter the conditions of employment.

• Problematic Content and Conduct: The court emphasized that while implicit bias training is lawful, programs that describe any race “with a constant drumbeat of essentialist, deterministic, and negative language” may cross into unlawful territory, evaluated under the totality of the circumstances.
• Failure to Act: Evidence showed that DOE officials were aware of Chislett’s complaints but “did nothing about it,” which could amount to tacit authorization of harassment sufficient for municipal liability under Monell specifically, a policy or custom of inaction.
• Other Claims Dismissed: The court affirmed dismissal of the demotion and constructive discharge claims, finding no evidence that those actions were motivated by racial animus and noting that constructive discharge demands a higher showing than hostile environment. As factual context, defendants also cited incidents reflecting the plaintiff’s own racially insensitive remarks as contributing to workplace tensions; while the panel ultimately affirmed on demotion because plaintiff failed to show decisionmaker racial bias. The court also made clear that constructive discharge requires intentional creation of intolerable conditions that would compel a reasonable person to resign, which is a higher bar than hostile environment and was not met here.

Broader Legal Significance: Title VII and § 1983 Scrutiny of DEI Programs

The decision underscores that implicit bias and DEI based trainings and programs are not immune from civil rights scrutiny. Although Chislett arose under § 1983 (Equal Protection), the court looked to Title VII’s hostile environment framework in assessing whether racially charged workplace conduct is actionable.

As more courts confront claims tied to workplace DEI initiatives, Chislett provides early guidance on both the evidentiary threshold and the limits of lawful diversity programming.

In addition, recent EEOC guidance (March 2025) cautions that DEI initiatives may be unlawful if any employment action is motivated, in whole or in part, by protected characteristics, aligning with the court’s reminder that civil rights rules apply fully to DEI contexts.^[2]

The Fifth Circuit Perspective: Implications for Texas Employers

While Chislett is not binding in the Fifth Circuit, two Fifth Circuit decisions provide critical context for how similar claims might be analyzed in Texas and neighboring states.

Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 2023)(en banc)^[3]

 In Hamilton, the en banc Fifth Circuit overturned its long-standing “ultimate employment decision” requirement, holding that a plaintiff can state a Title VII claim by alleging discrimination in the “terms, conditions, or privileges of employment.”

“A plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment. She need not also show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias.” Id. at 497.

Why it matters: Hamilton broadens potential Title VII exposure in the Fifth Circuit. Claims based on the work environment conduct, including alleged race-based hostility during mandatory DEI programs, could satisfy this standard even without termination, demotion, or other tangible adverse actions. At the same time, the court underscored that Title VII does not reach de minimis complaints and expressly left for a future case the precise minimum threshold of harm required beyond discrimination in the “terms, conditions, or privileges” of employment.

Price v. Valvoline, L.L.C., 88 F.4th 1062 (5th Cir. 2023)

In Price, the Fifth Circuit affirmed summary judgment for the employer on both the race discrimination and race-based hostile work environment claims. On the hostile work environment claim, the court reiterated that isolated or sporadic offensive remarks are insufficiently severe or pervasive:

“These comments were not physically threatening, and Price does not claim that he was humiliated by them. Thus, each comment was ‘merely an offensive utterance’ insufficient to establish a hostile work environment.” Id. at 1067.

Why it matters: Price illustrates the Fifth Circuit’s restrained approach to hostile work environment claims. Price underscores that isolated, non-threatening remarks that are not alleged to have been humiliating are typically insufficient. By contrast, if the record reflected that the comments were humiliating particularly if public, repeated, or accompanied by management inaction that evidence could shift the totality-of-the-circumstances analysis toward objective offensiveness. Courts in this circuit generally require frequent or egregious conduct or employer inaction after repeated complaints before finding liability.^[4]

Practical Implications for Employers and DEI Training Design

This ruling does not invalidate DEI or implicit bias training, but it underscores that content and implementation matter.

1. DEI Programs Are Not Immune: Even well-intentioned DEI efforts can violate civil-rights law if they rely on stereotypes or negative generalizations about any racial group.
2. Management Accountability: Promptly investigate and address employee concerns about DEI content. Repeated inaction can be construed as employer ratification of harassment.
3. Neutral, Evidence-Based Design: Focus trainings on behaviors, systems, and inclusive practices, not immutable characteristics or moral hierarchies.
4. Documentation and Oversight: Retain materials, facilitator credentials, participant feedback, and complaint responses; review regularly for compliance.
5. Litigation Risk: Chislett suggests that courts may scrutinize DEI initiatives under the same hostile-environment framework that governs other race-based claims.

A Cautionary Precedent

The Second Circuit made clear: DEI is lawful but not limitless. Programs that essentialize, single out, or disparage a racial group, coupled with management inaction, can create exposure under Title VII and Section 1983. Texas employers should take heed. In light of Hamilton and Price, DEI-related hostility claims could become more plausible in the Fifth Circuit, particularly if training content or implementation affects daily working conditions.

Bottom Line

Chislett signals a new stage in DEI litigation. Inclusion efforts remain vital, but they must be designed and executed in a manner consistent with civil rights law. Employers should emphasize behavioral inclusion and ensure DEI training promotes respect and equal dignity for all employees.

Finally, while the court’s reasoning is careful not to condemn DEI programming wholesale, it is equally clear that the design, delivery, and follow-through of anti-bias content and management’s documented response to concerns will determine legal risk.

[1] See Chislett, citing De Piero v. Pennsylvania State University, 711 F. Supp. 3d 410, 424 (E.D. Pa. 2024) (stating when employment training discusses any race “with a constant drumbeat of essentialist, deterministic, and negative language [about a particular race], they risk liability under federal law.”

[2] See DEI Under Scrutiny: What Employers Must Know About New EEOC and DOJ Guidance – Jackson Walker

[3] Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023)

[4] Discussion of “diversity” as a potential pretext for discrimination appears in Judge Ho’s concurrence. Id. at 1067–69 (Ho, J., concurring in the judgment).

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information on the Second Circuit Court opinion, please contact a member of the Labor and Employment practice.

Meet Jamila

Board certified in Labor and Employment Law by the Texas Board of Legal Specialization, Jamila M. Brinson is a zealous advocate for her clients. She partners with clients to help them understand the nuances of Texas state and federal employment law, defends management and employers in employment litigation, conducts workplace investigations, drafts, and advises on employment policies, and provides individualized employee and supervisor training. Jamila formed and chairs Jackson Walker’s Diversity & Inclusion Counseling Practice, which serves clients seeking to foster inclusion in its corporate culture by implementing and maintaining effective and legally compliant diversity, equity, inclusion and belonging related strategy, policies, and procedures.

Certified in Leading Diversity, Equity and Inclusion through Northwestern University’s Weinberg College of Arts and Sciences, Jamila is often brought in by clients to conduct workplace culture assessments and propose plans of action to remedy legal concerns and decrease risk. In recognition of her practice, Jamila has been named to The Best Lawyers of America list for Employment Law—Management, Thomson Reuters’ Super Lawyers list, and Lawdragon’s list of the 500 leading U.S. Corporate Employment Lawyers.

Meet Dawn

Dawn S. Holiday focuses on labor and employment law litigation, representing corporations in disputes involving discrimination, harassment, wrongful termination, wage and hour, non-competition, trade secret and workplace investigation claims. Dawn has been recognized among Thomson Reuters’ Texas Super Lawyer and Super Lawyers – Rising Stars, “Who’s Who in Black Houston,” the National Bar Association’s “Top 40 Under 40,” and Lawdragon’s “500 Leading U.S. Corporate Employment Lawyers.” Dawn has also been recognized among the National Black Lawyers “Top 100” for three consecutive years. Outside of her law practice, through various organizations, Dawn is on mission to advance equality for women and underrepresented attorneys in the legal profession. She is highly regarded and has an outstanding reputation amongst her peers, as well as the recipient of many prestigious awards and recognitions for her legal expertise, leadership and community service.

Meet Ari

Ariel Perez has successfully represented numerous Fortune 500 companies in labor and employment matters before federal and state courts and administrative agencies, including the DOJ, DOL, EEOC, TWC, and NLRB. Ari also conducts comprehensive audits of employee classifications and payroll records to ensure FLSA compliance and rectify potential wage and hour violations. Ari’s expertise extends to traditional labor law, guiding clients through elections, defending against unfair practice charges, performing union avoidance training, and advising on labor management relations. She also represents federal contractors in OFCCP audits and affirmative action compliance. Ari’s clients span a wide range of industries, including energy, manufacturing, construction, retail, hospitality, staffing, securities, and healthcare.