00:00:00
Speaker 1: I'm a big fan of Pacific Legal Foundation. They do incredible work on important cases, and we have had many Pacific Legal guests on the show. And I will just mention PacificLegal.org being their website.
00:00:13
Speaker 2: Today, we're going to.
00:00:14
Speaker 1: Talk about a case called Young v. Colorado Department of Corrections. The attorney on the case, Glenn Roper. It's actually based here in Colorado, but he's with Pacific Legal. And he is representing a former sergeant in the Colorado Corrections Department who is suing the state. And Glenn will tell us why right now. So good morning, Glenn, and tell us what's going on.
00:00:36
Speaker 2: Well, good morning, Ross, and thanks for having me on.
00:00:41
Speaker 3: As you mentioned, Josh Young, he was a sergeant and he worked at the Lyman Correctional Institution, a maximum security prison out in Lyman. He was a rising star, was doing really well. A few years ago, the state mandated that he take this so-called DEI training. And you've probably heard about these trainings. Maybe some of your listeners have had to endure them as well. Anyway, the one that was mandated by the Department of Corrections was really, it was openly derogatory of white people. It said things like, all white people perpetuate white supremacy. That race was developed by white people to oppress people of color.
00:01:23
Speaker 2: That the achievements of.
00:01:24
Speaker 3: White Americans aren't due to their own efforts, but are due to generations of affirmative action for whites. And then if white people are uncomfortable with these kinds of things, well, that's just due to their white fragility. And the training didn't just say, these are some abstract concepts. It said, these are the things that you need to be applying in your day-to-day work there in the prison. So Josh, he objected to this training, not just because it's offensive, but because it really affected his job in his workplace. You know, a maximum security prison, racial issues come up regularly, and this affected his ability to do his job. Every time he had to use force, he was concerned about, well, am I going to be accused of racism? for the way that I'm implementing these force techniques. Previously, he'd wanted to achieve a promotion, but he said, If I get a promotion, I'm going to have to teach and incorporate these concepts.
00:02:23
Speaker 2: And I'm not sure I want to do that anymore.
00:02:24
Speaker 3: So so he complained that he was told we're not even going to investigate your complaint. And he ultimately ended up leaving his job.
00:02:33
Speaker 1: So just a quick thing on if he left his job, why is the case not moot? And are they still doing these mandatory trainings of this type?
00:02:43
Speaker 3: So he brought a claim under what's called Title VII, which is a claim that there was a hostile work environment. So his claim is that he was actually forced out because of this hostile work environment that was created by the Department of Corrections. And it's interesting that he asked about whether they're still doing the trainings.
00:03:01
Speaker 2: Josh ultimately left.
00:03:03
Speaker 3: And the 10th Circuit, which looked at his case, said, actually, this training is, and this is a quote from the opinion, troubling on many levels. But what they said is because it only happened once, that's not going to be enough for you to bring a claim. So they didn't even allow him to move forward with his claim. to get it investigated or get discovery. They just said because it was a single training, that can't be enough as a matter of law to create a hostile work environment.
00:03:31
Speaker 4: Glenn, can you explain a little bit more about the argument that the training creates a hostile work environment? Because when I think of hostile work environment, I think of like an employee to an employee situation, employee to a boss, but we're talking employee to an online training program.
00:03:48
Speaker 3: Yeah, well, what the Supreme Court has said is a hostile work environment can be created if the harassment is severe or pervasive. And you're right, usually a hostile work environment, it's going to be like your co-workers or maybe a rogue supervisor. Here, what we have is an employer mandated training. And actually, our argument is that makes it more severe, not less. And there are a number of courts around the country that have held a single racial incident can be enough to create a hostile work environment. But here, the 10th Circuit said one single training isn't enough. And so that's why we're going to the Supreme Court to say there's a dispute among the lower courts as to whether one incident can be enough to bring a claim here. The 10th Circuit said no, other courts have said yes, that's enough.
00:04:39
Speaker 1: So you're actually appealing a denial from the 10th Circuit to the Supreme Court, is that right?
00:04:45
Speaker 2: Exactly.
00:04:45
Speaker 3: The Tenth Circuit dismissed his case at what's called the pleading stage, so very early on in the process. He hasn't been able to get discovery. He hasn't been able to go to a jury, anything like that. The Tenth Circuit just said, you can't even bring a claim. You can't even claim there's a hostile work environment unless you can show that after the training, there were additional specific instances of harassment of you personally. And we think that's wrong as a matter of law, and we think it conflicts with other courts.
00:05:14
Speaker 4: I am curious where this training comes from. If it's being shown in the Department of Corrections, are there other state departments that are doing similar trainings?
00:05:21
Speaker 1: Do you know?
00:05:23
Speaker 2: I don't know.
00:05:23
Speaker 3: I think so, because this was a training mandated by the state and developed by CDPHE, which is a larger state entity.
00:05:32
Speaker 2: So I would assume other.
00:05:33
Speaker 3: People have had to go through either this exact or similar kinds of trainings here. And unfortunately, this is spreading. And that's one reason why this is such an important case, because employers across the country are mandating these kinds of trainings. And we think the Supreme Court needs to weigh in and say, is being forced to have an employer-sponsored training that's racially derogatory.
00:05:57
Speaker 2: Is that protected? Are you protected against that under Title VII?
00:06:01
Speaker 1: So at this point, the status is you're waiting to find out if you're granted cert.
00:06:05
Speaker 2: Is that what's happening? That's exactly right.
00:06:07
Speaker 3: As you know, the Supreme Court has control over which cases it takes or doesn't take. It's pretty hard to get the Supreme Court to take a case. They only are hearing about 60 cases a year. We hope that they will see this as one because there is that circuit split because the courts are divided. And because this isn't an isolated incident, these kinds of trainings are really ubiquitous in government and private employers. We hope that they'll see it as important enough to take.
00:06:37
Speaker 1: Just real quick, when would you expect to have an answer on whether they will take the case or not?
00:06:43
Speaker 3: So we filed our petition about two weeks ago, and then- we're waiting to see if the state is going to respond. The state can either respond or they'll say, we declined to respond. And then if they decline, we'll see if the Supreme Court orders them to respond because they won't grant the case unless they've heard what the state has to say. So we're at least probably a month away, a month to two months before the Supreme Court will actually conference on this case and decide, is this going to be one that we add to our docket this year?
00:07:16
Speaker 1: Glenn Roper is a Colorado-based senior attorney for the Pacific Legal Foundation, representing Josh Young against the Colorado Department of Corrections. We'll stay in touch as this develops, especially if they do grant cert, which I hope they do.
00:07:32
Speaker 2: Sounds great. Thanks for having me on. All right. Thanks for being here. Appreciate it.
Speaker 1: I'm a big fan of Pacific Legal Foundation. They do incredible work on important cases, and we have had many Pacific Legal guests on the show. And I will just mention PacificLegal.org being their website.
00:00:13
Speaker 2: Today, we're going to.
00:00:14
Speaker 1: Talk about a case called Young v. Colorado Department of Corrections. The attorney on the case, Glenn Roper. It's actually based here in Colorado, but he's with Pacific Legal. And he is representing a former sergeant in the Colorado Corrections Department who is suing the state. And Glenn will tell us why right now. So good morning, Glenn, and tell us what's going on.
00:00:36
Speaker 2: Well, good morning, Ross, and thanks for having me on.
00:00:41
Speaker 3: As you mentioned, Josh Young, he was a sergeant and he worked at the Lyman Correctional Institution, a maximum security prison out in Lyman. He was a rising star, was doing really well. A few years ago, the state mandated that he take this so-called DEI training. And you've probably heard about these trainings. Maybe some of your listeners have had to endure them as well. Anyway, the one that was mandated by the Department of Corrections was really, it was openly derogatory of white people. It said things like, all white people perpetuate white supremacy. That race was developed by white people to oppress people of color.
00:01:23
Speaker 2: That the achievements of.
00:01:24
Speaker 3: White Americans aren't due to their own efforts, but are due to generations of affirmative action for whites. And then if white people are uncomfortable with these kinds of things, well, that's just due to their white fragility. And the training didn't just say, these are some abstract concepts. It said, these are the things that you need to be applying in your day-to-day work there in the prison. So Josh, he objected to this training, not just because it's offensive, but because it really affected his job in his workplace. You know, a maximum security prison, racial issues come up regularly, and this affected his ability to do his job. Every time he had to use force, he was concerned about, well, am I going to be accused of racism? for the way that I'm implementing these force techniques. Previously, he'd wanted to achieve a promotion, but he said, If I get a promotion, I'm going to have to teach and incorporate these concepts.
00:02:23
Speaker 2: And I'm not sure I want to do that anymore.
00:02:24
Speaker 3: So so he complained that he was told we're not even going to investigate your complaint. And he ultimately ended up leaving his job.
00:02:33
Speaker 1: So just a quick thing on if he left his job, why is the case not moot? And are they still doing these mandatory trainings of this type?
00:02:43
Speaker 3: So he brought a claim under what's called Title VII, which is a claim that there was a hostile work environment. So his claim is that he was actually forced out because of this hostile work environment that was created by the Department of Corrections. And it's interesting that he asked about whether they're still doing the trainings.
00:03:01
Speaker 2: Josh ultimately left.
00:03:03
Speaker 3: And the 10th Circuit, which looked at his case, said, actually, this training is, and this is a quote from the opinion, troubling on many levels. But what they said is because it only happened once, that's not going to be enough for you to bring a claim. So they didn't even allow him to move forward with his claim. to get it investigated or get discovery. They just said because it was a single training, that can't be enough as a matter of law to create a hostile work environment.
00:03:31
Speaker 4: Glenn, can you explain a little bit more about the argument that the training creates a hostile work environment? Because when I think of hostile work environment, I think of like an employee to an employee situation, employee to a boss, but we're talking employee to an online training program.
00:03:48
Speaker 3: Yeah, well, what the Supreme Court has said is a hostile work environment can be created if the harassment is severe or pervasive. And you're right, usually a hostile work environment, it's going to be like your co-workers or maybe a rogue supervisor. Here, what we have is an employer mandated training. And actually, our argument is that makes it more severe, not less. And there are a number of courts around the country that have held a single racial incident can be enough to create a hostile work environment. But here, the 10th Circuit said one single training isn't enough. And so that's why we're going to the Supreme Court to say there's a dispute among the lower courts as to whether one incident can be enough to bring a claim here. The 10th Circuit said no, other courts have said yes, that's enough.
00:04:39
Speaker 1: So you're actually appealing a denial from the 10th Circuit to the Supreme Court, is that right?
00:04:45
Speaker 2: Exactly.
00:04:45
Speaker 3: The Tenth Circuit dismissed his case at what's called the pleading stage, so very early on in the process. He hasn't been able to get discovery. He hasn't been able to go to a jury, anything like that. The Tenth Circuit just said, you can't even bring a claim. You can't even claim there's a hostile work environment unless you can show that after the training, there were additional specific instances of harassment of you personally. And we think that's wrong as a matter of law, and we think it conflicts with other courts.
00:05:14
Speaker 4: I am curious where this training comes from. If it's being shown in the Department of Corrections, are there other state departments that are doing similar trainings?
00:05:21
Speaker 1: Do you know?
00:05:23
Speaker 2: I don't know.
00:05:23
Speaker 3: I think so, because this was a training mandated by the state and developed by CDPHE, which is a larger state entity.
00:05:32
Speaker 2: So I would assume other.
00:05:33
Speaker 3: People have had to go through either this exact or similar kinds of trainings here. And unfortunately, this is spreading. And that's one reason why this is such an important case, because employers across the country are mandating these kinds of trainings. And we think the Supreme Court needs to weigh in and say, is being forced to have an employer-sponsored training that's racially derogatory.
00:05:57
Speaker 2: Is that protected? Are you protected against that under Title VII?
00:06:01
Speaker 1: So at this point, the status is you're waiting to find out if you're granted cert.
00:06:05
Speaker 2: Is that what's happening? That's exactly right.
00:06:07
Speaker 3: As you know, the Supreme Court has control over which cases it takes or doesn't take. It's pretty hard to get the Supreme Court to take a case. They only are hearing about 60 cases a year. We hope that they will see this as one because there is that circuit split because the courts are divided. And because this isn't an isolated incident, these kinds of trainings are really ubiquitous in government and private employers. We hope that they'll see it as important enough to take.
00:06:37
Speaker 1: Just real quick, when would you expect to have an answer on whether they will take the case or not?
00:06:43
Speaker 3: So we filed our petition about two weeks ago, and then- we're waiting to see if the state is going to respond. The state can either respond or they'll say, we declined to respond. And then if they decline, we'll see if the Supreme Court orders them to respond because they won't grant the case unless they've heard what the state has to say. So we're at least probably a month away, a month to two months before the Supreme Court will actually conference on this case and decide, is this going to be one that we add to our docket this year?
00:07:16
Speaker 1: Glenn Roper is a Colorado-based senior attorney for the Pacific Legal Foundation, representing Josh Young against the Colorado Department of Corrections. We'll stay in touch as this develops, especially if they do grant cert, which I hope they do.
00:07:32
Speaker 2: Sounds great. Thanks for having me on. All right. Thanks for being here. Appreciate it.
