State Employer Requiring Employees Watch “Antiracist/Gender Identity Videos” Isn’t Constitutional Speech Compulsion


You can also find out more about us on our website. Norgren v. Minn. Dep’t of Human Servs.The Eighth Circuit ruled on Thursday in an opinion written by Judge Ralph Erickson and joined by Judges Michael Melloy, Davis Stras, and Judges Michael Melloy:

We have taken the facts from [Aaron Norgren’s complaint]…. Aaron, who continues to work at DHS, has served as a security counselor with the Forensic Mental Health Program for nine years….

[Aaron and his father, Joseph, who also worked at DHS, received an email] … instructing him to complete [online] The workplace trainings are titled “Understanding Gender Identity and Expression – Moving Beyond the Binary” and “How to Be Antiracist”. … Commissioner Harpstead also emailed employees that the trainings were necessary to foster “brave conversations” and “change … minds for life” and DHS Assistant Commissioner Karen McKinney told employees that “we need all of you to do this.”

The Norgrens alleged the trainings instructed staff to speak or refrain speaking on certain political, ideological and social issues. The trainings, as an example, required a minute’s silence for George Floyd. They also instructed employees to stop using “I am not racist” as a defence, to admit a specific definition for the word “racist”, to confess racist policies they supported and to accept the United States as the source of racist ideas. The Norgrens said that gender identity training told them not to tell others their gender identities were wrong. The Norgrens opposed the racism training as violative of the traditional view of equality under Title VII, and they opposed the gender identity training as contrary to their sincerely held religious beliefs….

Aaron argued against both trainings with his direct supervisor Robert Schweisthal, and Joseph’s supervisor Pherson. He … asked for an exemption from both trainings and was denied … with no right of appeal.

The court rejected the claim that the trainings included impermissible speech coercion:

The Norgrens did not prove that Harpstead forced them to adopt the messages in the trainings.

It was not claimed that the Norgrens had to agree affirmatively with any of the statements made during the trainings. No one claimed that the Norgrens were threatened with a penalty if the did not observe a minute of silence in memory of George Floyd, if the continued to use the phrase “I’m not a racist” after the training or if the expressed their opposing views about racism or gender identity at work.

The email that instructed the Norgrens on how to complete the trainings told them to watch all the videos until the end, and then click on the exit button. The claim that Harpstead wanted the trainings for the Norgrens to permanently change their minds does not demonstrate the required compulsion.

This is especially true because different types of training might have some content that some people may consider ideological. For example, imagine incoming soldiers being required to read books or watch videos that aim to inculcate certain patriotic or professional norms, or to teach contestable interpretations of the laws of war. This is particularly true because some training materials may contain content that others might consider ideological. For example, imagine that incoming soldiers were required to watch or read videos or books that instilled certain patriotic or professional values, or taught contestable interpretations about the laws of war.

Aaron also claimed that he had been denied an interview to be considered for a promotion shortly after this incident, and that the denial was in response to his request for religious exemption, and was more generally motivated by disapproval for his religious beliefs. The court allowed this claim to proceed:

“To establish a case of retaliation at a preliminary level, an employee must demonstrate that he engaged a protected activity, he suffered a materially detrimental action that would discourage a reasonable employee to make a claim of employment discrimination and there is a causal link between the protected action and the adverse action.” … If the employee establishes a prima facie case at summary judgment or trial, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its action. If the employer meets this burden, the burden shifts back to the employee to provide evidence of pretext….

Aaron claimed he was considered for the same position in the past, regardless of whether he met the technical qualifications. Aaron alleged that he met the qualifications …, that he was declined an interview after he filed his EEOC charge, and that DHS deviated from its past practice in choosing not to interview him. His complaint is sufficient for a plausible inference to be made of discrimination. His claim is further bolstered by the timing, as only three weeks elapsed between the protected conduct and the adverse action….

Aaron’s employment record and qualifications, DHS’s departure from its previous practice, the proximity of the protected activity to the adverse employment action and DHS’s failure to interview him in spite of his eligibility [also] Inferring religious discrimination is possible. The district court gave too much weight to whether Aaron established the existence of similarly situated comparators because courts generally do not inquire about comparators until the “pretext stage” of the inquiry, which arises at summary judgment….

The court also rejected Joseph’s claim that the work environment was so intolerable, he had to quit. You can read that in the decision if it interests you.

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