Opinions and Legal Insights

Critical Race Training or Civil Rights Law: We Can’t Have Both

Critical Race Theory (CRT) is a perspective that now influences the behavior of many employers, including major corporations and universities. It has also infiltrated federal government employment training. CRT is an impetus for the New York Times’ 1619 Project, now shaping school curricula across the country.

As is true with any theoretical approach to politics, there are some variations among CRT’s adherents, but the two best-selling proponents of CRT, Robin DiAngelo and Ibram X. Kendi, agree on the fundamentals. CRT begins with the presumption that race is the primary way to identify and analyze people and consequently posits a racial hierarchy that supposedly exists with whites on top and blacks at the bottom. Individual behavior is insignificant because everyone in America functions within a society of systemic racism, structural racism, and institutional racism. CRT affirms this perspective by pointing to various existing racial disparities, which it claims are the result of racist discrimination. According to this perspective, efforts by public and private organizations to enforce civil rights laws in employment, housing, contracting, education, etc. are either insufficient or pointless.

CRT offers two responses to this situation. First, all whites must admit their culpability by confessing the advantages white supremacy confers on them. Failure to do so reflects “white fragility”—an instinctive defensiveness that whites are said to display after they have been trained about their investment in racism. Second, individual whites cannot hide behind any personal history of non-discrimination or the desirability of race-neutral laws or policies because the collective action of their race has been oppressive.

Whites, therefore, must support “anti-racist” policies that require various forms of race preferences for non-whites across a variety of fields for an indefinite period. This is required even where whites are a local minority and power structures are controlled by non-whites or Blacks, Indigenous, and People of Color—“BIPOCs” in the current terminology.

On September 22, 2020, President Trump issued Executive Order 13950, “Combatting Race and Sex Stereotyping,” which described and banned the use of CRT employment training. At the Department of the Treasury, a seminar argued that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism” and instructed employees to avoid “narratives” that America should “be more colorblind” or “let peoples’ skills and personalities be what differentiates them.” At Argonne National Laboratories, training materials stated that racism “is interwoven into every fabric of American society and described concepts of “color blindness” and “meritocracy” as “actions of bias.” At Sandia National Laboratories, non-minority male employees were told that emphasizing “rationality over emotionality” was a characteristic of “white male[s]” and asked those present to “acknowledge” their “privilege” to each other.

The new Executive Order barring such race and sex stereotyping and scapegoating—whether it flies under the guise of CRT training or not—applies not only to federal agencies, but to federal contractors as well, thus covering most large corporations and universities.

Dividing whole groups into oppressors and oppressed is an obnoxious stereotype, not least because it glosses over actual individuals’ lived experiences.

There has been some pushback from those institutions. The American Council on Education (ACE) and 50 other educational associations declared: “We strongly oppose race and sex stereotyping,” but it did not claim such practices were absent in the orientation and training sessions on its campuses. ACE did argue that EO 13950 was “creating a chilling effect on the good faith and lawful efforts of campus officials to build and sustain non-discriminatory and non-hostile workplace and learning environments.”

ACE further argued the Order violated academic freedom, but there is no necessary conflict. EO 13950 states, “Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section (2a) of this order in an objective matter and without endorsement.” Moreover, how enforcement would work is not entirely certain.

Free speech supporters need to be clear about when CRT can be expressed within institutions and when CRT becomes coercive and violates civil rights law. It is not illegal for corporations or universities to invite speakers to argue for CRT, though forums with diverse views would be preferable. For instance, Sacramento State’s 2020 Fall Convocation featured an address by Ibram X. Kendi on “Advancing our Commitment to Anti-Racism.”

Attendance at such events would be voluntary, but employee training sessions are a different matter because they are usually mandatory. Persons absent or passive will be recorded. When CRT becomes the basis for the selection, training, or evaluation of employees, that is a different legal issue entirely. Asking one set of employees to confess to the sins of their racial ancestors or their individual current white privilege runs contrary to an employer’s responsibility to avoid creating a hostile work environment.

Laws about hostile or toxic work environments are based in both Title VII and Title IX of the Civil Rights Act. The U.S. Equal Employment Opportunity Commission defines a hostile or toxic work environment as one that involves “unwelcome conduct that is based on race, color, religion, national origins, age, disability, or genetic information.” That conduct “may include, but is not limited to offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put downs, offensive objects or pictures and interference with work performance.” CRT certainly can involve “slurs, epithets or name calling,” as well as “ridicule or mockery, insults or put downs.”

EEOC cautions against making petty slights, annoyances, or isolated incidents illegal, but calling out one racial group as privileged or fragile in official training sessions or institutional statements surely does create a work environment that is “intimidating, hostile or offensive to reasonable people.” It is impossible to have a civil fact-based discussion about race when the discussion is centered on stereotyping people on the basis of race.

Some believe EO 13950 is merely symbolic or can easily be repealed by a new administration. But even in that case, such an action will not change civil rights law or long-standing judicial interpretations of it.

Regardless of EO 13950’s status, employers should avoid certain probable offenses. Hiring should not be influenced by stereotypes about what persons identified by race, ethnicity, or gender will bring to an organization. What do all Hispanics or all Asians have in common, for example? For similar reasons, bifurcation of employees for any purpose into BIPOC or non-BIPOC groups should always be avoided.

Organizational definitions of diversity should extend far beyond race and sex and encompass the enormous variety of ways Americans define themselves. Training sessions should not blame contemporary Americans for events that happened in earlier decades or centuries. Dividing whole groups into oppressors and oppressed is an obnoxious stereotype, not least because it glosses over actual individuals’ lived experiences. There should be a balance in the training between discussion of what we as a nation have accomplished in civil rights and the goals we have not achieved. It should consider what Americans have in common and where they differ. Most of all, individual employees should not be criticized or rewarded for the actions of other members of a group.

Campuses and corporations all over the country are quietly reevaluating their official statements and practices regarding race. EO 13950 should not create problems for beneficial diversity programs that affirm the various characteristics of different cultures, but it might signal trouble for the divisive approach of CRT. Following these general rules will not only help administrators and institutions to avoid sanctions, but it may also benefit employee efforts to achieve consensus around actual organizational goals.