In a case recently decided by the U.S. Second Circuit Court of Appeals, which covers New York, the court ruled that mandatory anti-bias training can support a claim for a racially hostile work environment if it repeatedly portrays a specific race in negative or stereotypical terms. Not all implicit bias training is leading to an EEO charge, but the facts in this case are similar to the trainings that were present in trainings banned during President Trump’s first administration.

In the first Trump administration, anti-bias training included taking white employees into a separate room and telling them they were racist, that they suffered from white privilege, and they were a problem.  When the Trump administration learned of the training, they banned it.  A result of the training was the issuance of an Executive Order on Combating Race and Sex Stereotyping to federal contractors and subcontractors.  That order specifically prohibited the promotion of “divisiveness” in the workplace, which includes education or training in or on “divisive concepts.”

In the second Trump administration, a flurry of Executive Orders were issued against DEI initiatives and two memorandums defining illegal DEI from Department of Justice were issued again warning against such training targeting race.  As much as employers use implicit training for diversity and anti-harassment initiatives, the training itself cannot be creating a hostile environment, but should foster discussion on why actions are taken – a very slippery slope.

In the case of Chislett v. New York City Department of Education, No. 24-972 (2nd Circuit Court of Appeals, 9/25/25) Leslie Chislett was appointed Executive Director of the “AP for All” program, where she supervised a diverse team and was credited with expanding access to Advanced Placement courses. Early in her tenure, she experienced racial tensions with subordinates, including accusations of “microaggressions” and being labeled as exhibiting “white fragility.” These tensions escalated after a new Chancellor implemented an “equity agenda” that included mandatory implicit bias trainings.

Chislett, who is White, alleged that these trainings and subsequent workplace interactions, which took place in 2018 and 2019, fostered a racially hostile environment.  She stated that the instructors described “white culture” as “supremacist,” “toxic,” and “privileged.” At one point, Chislett was told her focus on “excellence” reflected “white supremacy.”  She complained to her managers about repeated negative generalizations about white employees.  The supervisors failed to intervene.   

Chislett filed a lawsuit, and her suit was dismissed during summary judgement. The Second Circuit reviewed the case and revived part of the lawsuit on the hostile work environment claim

finding that genuine disputes of material fact existed as to whether the DOE’s actions and inaction amounted to a municipal policy or custom that created a racially hostile environment.

The Court stated that with respect to the hostile workplace claims,

when “drawing all reasonable inferences in Plaintiff’s favor, a rational juror could find that discriminatory conduct at the DOE was sufficiently severe and pervasive to have created a hostile work environment. There is no ‘threshold magic number of harassing incidents,’ and Chislett set forth sufficient evidence for a rational juror to find that she was repeatedly exposed to racial harassment at her workplace throughout 2018 and 2019.  First, Chislett presented evidence from which a rational jury could find that racist comments were expressed during bias trainings. For example, instructors mentioned several times that the ‘values of [w]hite culture are supremacist.’. Similarly, during one training session, Ababio-Fernandez, Senior Executive Director of the OEA, declared: ‘There is white toxicity in the air, and we all breathe it in.’”

This training also undermined her authority as the Executive Director, making it a delicate situation to manage her team’s work.  In one situation when reprimanding a Black worker who came late to work, the employee stated, “How dare you use the word unbearable, there is black people dying in the street, you don’t have the right to use that term. You’re coming from the position of white privilege and white supremacy.”

The takeaway for HR is that the court did not rule that implicit bias, anti-bias, or other DEI trainings are unlawful.  Employers need to continue anti-discrimination and harassment training. However, any training that disparages members of any group type, race, sex, religion, etc., should be weeded out and avoided, otherwise the employer could be in the cross-hairs for hostile environment claims.

ASE Connect

ASE Harassment Prevention Course: This course will define various types of harassment in the workplace with a special focus on sexual harassment. Participants will learn the legal definition of harassment and the various types of situations that could be perceived as harassment. It will also identify proactive preventive measures that could and should be undertaken by organizations. Various tools will be used from case studies to video vignettes. The next course will be held virtually on February 3, 2026.  Register here.

Traliant On-Demand Anti-Harassment Courses: ASE partners with Traliant to offer on-demand courses.  View their options for harrassment prevention here.

Source:  Constangy Brooks Smith & Prophete LLP 10/16/25