But don't expect it to stop. Government regulations often require that a school be accredited, a condition that accreditors like the American Bar Association use to force law schools to run costly diversity and sensitivity-training programs or use racial preferences in admissions (despite the dubious legality of some such diversity programs and admissions preferences). Such mandates have contributed to the growth of a vast and costly “diversity machine” in college administrations. (And as a condition of practicing law in California, I had to take continuing legal education on the topic of “elimination of bias in the legal profession.”)
Time magazine had a story on April 26, 2007, entitled “Employee Diversity Training Doesn’t Work.” Employers pay millions every year for diversity training, but often the training backfires and blows up in the face of the employer that paid for it. In Hartman v. Pena (1995), the Federal Aviation Administration got sued for sexual harassment after it subjected employees to three days of diversity training that scapegoated white males. After a federal judge refused to dismiss the lawsuit against it, the agency had to pay out a settlement to the white male employee who sued.
Diversity training often imparts bad legal advice to supervisors and employers that can come back to haunt them in court. Experts on civil-rights law can find such training annoying and misleading. Gail Heriot, a law professor and member of the U.S. Civil Rights Commission, complained about sexual harassment and diversity training she received at the University of San Diego, in a state (California) where harassment training is mandatory under state law. The training sent the message that criticisms of affirmative action by white male employees are something that the employer should “nip in the bud” through investigations.
That was bad legal advice, since criticism of affirmative action is protected against retaliation by Title VII of the Civil Rights Act, 42 U.S.C. 1981, and other laws, even when the affirmative action program criticized turns out to have been perfectly legal. Even court rulings that have upheld private-sector affirmative action programs, such as Sisco v. J.S. Alberici Const. Co. (8th Cir. 1981), have allowed workers to sue employers who punish them for criticizing affirmative action. In the public sector, such punishment also violates the First Amendment. The California Department of Corrections attempted to fire John Wallace after he angrily denounced its affirmative action plan to the Hispanic female employee he perceived as benefiting from it. An appeals court, however, ruled that his criticism of the plan was protected speech, and barred his termination, in California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997).
Employers can be quite gullible about the claims made by “diversity” trainers, allowing minority trainers to promote racial stereotypes that would provoke outrage if they were subsequently repeated by white managers or employees. For example, Glenn Singleton, a wealthy “diversity” trainer, has claimed that “white talk” is “impersonal, intellectual, verbal” and “task-oriented,” while “color commentary” is “emotional.” If a white person said this, it would rightly be regarded as a ridiculous, racist stereotype that relegates black people to inferior status. (California Superintendent Jack O’Connell, a white liberal, was publicly embarrassed, and called racist, after he repeated a belief that Singleton shared with him that black people are loud. Singleton also embarrassed the Seattle Schools in a landmark Supreme Court case.)
Major employers have paid out millions of dollars in discrimination claims because of diversity-training programs. One Fortune 500 company paid out tens of millions of dollars in response to a class-action racial discrimination suit by minority employees, which was fueled by remarks managers made after undergoing mandatory diversity training (they joked about jelly beans used in the training to represent minority employees. That, coupled with a poor quality recording in which a manager’s reference to “Saint Nicholas” was misinterpreted as the N-word, created a furor).
Diversity training triggers workplace conflict and lawsuits, by compelling employees to talk about contentious racial or sexual issues, with resulting acrimony, and remarks that are misinterpreted or perceived as racist or sexist. For example, in Stender v. Lucky Stores (1992), statements made by managers during sensitivity training were held by a court to be evidence of discrimination. Some judges take a dim view of diversity training. In Fitzgerald v. Mountain States Tel & Tel. Co. (1995), where employee reactions to diversity training gave rise to a lawsuit, a federal appeals court noted that “diversity training sessions generate conflict and emotion” and that “diversity training is perhaps a tyranny of virtue.”