Court Revives Title VII Claims Against CRT and Gender Identity Training

Takeaway: Despite the results in this case, courts often grant motions to dismiss novel claims that lack supporting allegations.

The 8th U.S. Circuit Court of Appeals reversed the dismissal of claims brought by a state employee alleging that he was retaliated and discriminated against for his opposition to critical race theory (CRT) and gender identity training.

The plaintiffs were a father and son, both Christians, who worked at the Minnesota Department of Human Services (DHS). The father was employed for 27 years as a security counselor with the Security Hospital, now known as the Forensic Mental Health Program. The son held the same role with the Forensic Mental Health Program for nine years. Neither plaintiff ever received any complaints related to their performance.

On Oct. 12, 2018, the father was working an overnight shift at the Security Hospital and his direct supervisor asked him how many genders exist. He responded that he believed two exist based on his knowledge of DNA and biology. The supervisor then told him that “his God” made them that way, and he could be fired for the way he thought and spoke.

Nearly two years later, the father and son received emails from their supervisors instructing them to complete workplace trainings titled “How to be Anti-Racist (CRT Training)” and “Understanding Gender Identity and Expression: Moving Beyond the Binary.” The plaintiffs claimed that the trainings instructed employees to speak or refrain from speaking on certain political and ideological matters.

The CRT trainings included a minute of silence for George Floyd. They also directed employees to stop using the phrase “I am not a racist” as a defense, to admit to a specific definition of the word racist, to confess to racist policies they supported and to accept that the U.S. is the root of racist ideas. The plaintiffs alleged that the gender identity training instructed them to refrain from telling others that their gender identities were wrong. The plaintiffs opposed the trainings as violating their views of equality and being contrary to their sincerely held religious beliefs.

On Sept. 10, 2020, the father expressed his opposition to the gender identity training to one of his supervisors and sought a religious exemption. On Oct. 6, 2020, he emailed the supervisor, notifying him that he planned to retire on Jan. 6, 2021. On Oct. 27, 2020, the director of the Equal Opportunity and Access Division informed him via email that his request for a religious exemption was denied. On Nov. 2, 2020, the father replied that the denial of his exemption request solidified and confirmed his decision to leave the DHS.

The son expressed opposition to both trainings to his supervisor and to his father’s supervisor. He requested an exemption from both trainings, which was denied by the director of the Equal Opportunity and Access Division with no right of appeal. Shortly thereafter, the DHS denied his request to use leave for inclement weather. One month later, the DHS permitted him to take the requested leave retroactively, but the human resources office maintained that the denial was appropriate.

In February 2021, the son applied for a temporary group supervisor assistant position and was accepted for an interview but could not attend because of scheduling conflicts. The DHS posted the permanent position in June 2021, and the son applied for the position with the same resume that he had submitted for other, similar positions. He then filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Three weeks later, HR told him he could not interview for the position because he failed to satisfy its minimum qualifications.

The father also filed an EEOC charge of discrimination, and both plaintiffs received right-to-sue letters. They brought lawsuits against the DHS under Title VII of the Civil Rights Act of 1964 for discrimination and retaliation and under 42 U.S.C. Section 1983 for First Amendment retaliation and compelled speech. The defendants filed motions to dismiss all claims, which the district court granted, and the plaintiffs appealed.

On appeal, the 8th Circuit found that the motion to dismiss standard was more differential to plaintiffs than the district court recognized. The district court dismissed the son’s Title VII claims because he could not prove his qualifications for the position or that DHS acted with pretext. The 8th Circuit found that his allegations were sufficient for that early stage and revived his retaliation and discrimination claims.

However, the court upheld the dismissal of the father’s claims because he acknowledged that he planned to resign before his religious exemption was denied. The court also upheld the dismissal of the First Amendment claims for lack of compelled speech.

Norgren v. Minnesota Department of Human Services, 8th Cir., No. 23-1207 (Mar. 21, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.