Ohio Employer Law Blog | Daily Updates | 01CDEI is not a get-out-of-summary-judgment-free card — but it can become evidence of discrimination>01D plus more

DEI is not a get-out-of-summary-judgment-free card — but it can become evidence of discrimination

A white man gets fired. His employer has a DEI program. Therefore, the DEI program caused his termination.

That argument has become increasingly common in employment discrimination cases. It's also usually not enough.

But Chavers v. WestRock Services shows what happens when a plaintiff brings more than complaints about corporate diversity goals.

Brian Chavers, a white male, worked for WestRock for nearly 25 years. He had been a supervisor for more than a decade and, only months before his termination, was entrusted with plant-wide leadership training responsibilities.

WestRock fired him after a Black female employee accused him of harassment. The company also relied on a six-year-old "last chance agreement" that, according to testimony, ordinarily should have expired after one year.

Chavers sued, alleging that WestRock terminated him because of his race and sex. As part of his case, he pointed to the company's DEI program, which included representation goals and tied executive compensation to achieving them.

The court denied WestRock's motion for summary judgment.

But it did not hold that DEI programs are inherently discriminatory. Nor did it hold that representation goals prove discrimination against white men.

Instead, the court looked at the entire record.

A senior vice president had allegedly announced that the industry had "too many old white males" and that changes were coming. A former general manager testified that company leadership later used its DEI policy to treat older white men more harshly and target them for termination.

Chavers also offered evidence that several Black employees received repeated chances after misconduct, while WestRock resurrected his six-year-old agreement to justify firing him after one disputed incident.

Then there was the investigation—or lack of one.

The supposed decisionmaker conducted no independent investigation, could not identify what Chavers had actually said, and described the decision as "out of his hands." Other senior managers and HR personnel who normally participated in termination investigations said they had not been involved.

Finally, Chavers offered evidence that management had been warned not to stand "in the way of change in Montgomery."

Standing alone, any one of these facts might not have been enough. Together, the court concluded, they could allow a jury to find that race and sex played a role in the termination.

That distinction matters.

Title VII protects everyone, including white men. An employer cannot fire someone because it wants fewer employees of his race or sex any more than it can fire someone because it wants fewer Black employees or women.

But the mere existence of a DEI policy does not establish that discrimination occurred.

A company may lawfully seek a broader applicant pool, improve recruiting, identify barriers to advancement, and create a workplace in which employees from different backgrounds can succeed. Increased representation also does not, by itself, prove that anyone was unlawfully pushed out. Workforces change for countless legitimate reasons.

A plaintiff still needs evidence connecting the DEI program to the challenged employment decision.

Chavers had that connection—or at least enough evidence of one to get to a jury. He had arguably discriminatory statements, testimony about how the policy was implemented, potentially more favorable treatment of minority employees, suspicious departures from normal procedures, and weaknesses in the employer's stated reason for the termination.

That is the lesson for employers.

Your DEI program is not automatically illegal because a white male employee claims that it discriminated against him. But labels will not protect a program implemented through quotas, race-based decision-making, or selective discipline.

DEI may provide the backdrop for a discrimination claim. It should not provide the evidence that proves it.

"Boys will be boys" is not a harassment defense

The facts in Sharpe-Miller v. Walmart read less like a judicial opinion and more like an HR nightmare.

An assistant store manager allegedly told a gay employee, "Good—if homosexuals got any more rights, then we might as well legalize pedophilia and bestiality."

Coworkers regularly called him "f****ft," "butt pirate," and "Jerry the fairy." They mocked his walk, joked that he was "afraid to break a nail," made limp-wrist gestures whenever he passed, and one even called him a "pedophile."

Then someone drew a picture on the breakroom whiteboard with "F***T" scrawled across the figure's forehead.

When the employee reported it, his supervisor's response was to erase the drawing and say, "Boys will be boys."

The district court nevertheless dismissed his hostile work environment claim on summary judgment.

Earlier this week, the 10th Circuit reversed.

The opinion is worth reading because it corrects several common misconceptions about hostile work environment law. Most importantly, the court rejected the notion that harassment must amount to a "steady barrage" of discriminatory comments before it becomes actionable. That phrase has appeared in prior cases, but, as the 10th Circuit explained, it is descriptive—not a legal requirement. The governing standard remains the Supreme Court's familiar rule: harassment is unlawful if it is severe or pervasive enough to alter the terms and conditions of employment.

Those two words matter, and mean exactly what they say.

An employee doesn't need to endure daily abuse if a handful of incidents are sufficiently severe. Comparing homosexuality to pedophilia. Calling a gay employee a pedophile. Writing a slur across a drawing in a workplace breakroom. A reasonable jury could conclude that conduct crosses the line even if it wasn't constant.

The opinion also corrects several evidentiary mistakes that employers and lawyers sometimes make.

The district court dismissed comments about the employee's "cat walk," swaying hips, and being "afraid to break a nail" as unrelated to sexual orientation. The 10th Circuit disagreed. A jury could reasonably view those comments as mocking stereotypes associated with gay men, especially when considered alongside the explicit anti-gay slurs.

The court also explained that anonymous comments can still matter, remarks directed at others can still shape the workplace environment, and discriminatory slurs are not hearsay when they're offered simply to prove they were spoken rather than for the truth of what they assert.

Perhaps the most significant part of the opinion addresses an issue the 10th Circuit had never squarely decided before. The court held that discrete employment actions—such as a demotion or termination—can also be considered as part of a hostile work environment claim when they contribute to the overall pattern of discriminatory harassment. Those acts don't disappear from the analysis simply because they might also support separate discrimination claims.

For employers, the practical lessons are straightforward.

First, train your supervisors. More employment cases are lost because of a supervisor's offhand comment than because of a complicated legal issue.

Second, never respond to workplace harassment with "boys will be boys." That phrase doesn't end investigations. It creates lawsuits.

Third, don't assume hostile work environment claims require relentless, daily harassment. Sometimes a few extraordinarily offensive incidents are enough.

And if those incidents are ignored or condoned by management, don't be surprised when a jury—not a judge—gets to decide what happens next.

AI Isn't the Problem. Lazy Lawyering Is.

Another day, another sanctions opinion involving a lawyer who filed AI-generated legal work product riddled with hallucinated cases.

This time, it's the 11th Circuit.

The court's opinion reads like something that should be satire but unfortunately isn't. Counsel submitted an opening brief citing at least eight nonexistent cases. After opposing counsel pointed out the problem, he tried to fix it by withdrawing the bad citations. Except the eight cases he "withdrew" weren't the same eight fake cases from his opening brief.

Worse still?

The replacement list consisted of eight more hallucinated cases.

You almost couldn't script it better.

The 11th Circuit responded exactly as it should have. It reminded lawyers that competence requires "legal knowledge, skill, thoroughness and preparation." It emphasized that AI is no substitute for actual intelligence. And it referred the attorney for disciplinary proceedings.

Good.

But here's what bothers me about the inevitable reaction to opinions like this.

People will say, "See? AI is dangerous."

No. That's the wrong lesson.

AI didn't file the brief.

The lawyer did.

AI is an extraordinary tool. But it never replaces my judgment. Nor should it.

I would never file a brief without manually checking every citation and every quotation. I don't care whether those citations came from ChatGPT, Lexis, Westlaw, a first-year associate, or my own memory.

Verification is the job.

In fact, this isn't really an AI problem at all. It's the same professional obligation lawyers have always had.

When Lexis or Westlaw gives me a case, I Shepardize it before relying on it. I confirm that the quotation actually says what I claim it says. I make sure the proposition I'm citing is still good law.

That's not because I distrust Lexis or Westlaw. It's because I'm the one signing the brief. AI deserves exactly the same treatment.

The lawyers getting sanctioned aren't victims of unreliable technology. They're victims of their own willingness to skip the last—and most important—step in the process. They accepted the first answer a machine gave them without exercising independent professional judgment.

That's not innovation. That's laziness.

Every time another sanctions opinion like this gets published, it reinforces the false narrative that AI is incompatible with competent lawyering.

The opposite is true.

Lawyers who learn how to use AI responsibly will have a significant advantage over those who don't. They'll work more efficiently, spot more issues, and deliver better value to clients.

But only if they remember one simple rule: AI can draft your brief. It cannot sign your name.

And that's why the responsibility—for every citation, every quotation, every argument, and every word filed with a court—will always belong to the lawyer, not the software.

Apple v. OpenAI offers a master class in spotting trade secret theft before it's too late

Apple's newly filed trade secret lawsuit against OpenAI contains an allegation that should make every employer's ears perk up.

According to the complaint, multiple departing Apple employees allegedly emailed Apple's confidential information to their personal email accounts on their way out the door. Apple also claims that some former employees later used Apple's confidential and trade secret information to help OpenAI develop competing hardware.

Whether Apple ultimately proves those allegations is for the courts to decide.

But the behavior it describes is one of the oldest—and most obvious—red flags in the employee-theft playbook.

When someone suddenly starts forwarding company files to Gmail the week before resigning, odds are they're not creating a personal scrapbook.

The good news is that employees who steal information often leave breadcrumbs. The key is knowing what to look for.

1. Forwarding files to personal email. This is the classic tell. Employees suddenly emailing themselves spreadsheets, customer lists, source code, pricing information, engineering documents, contracts, or other confidential files shortly before giving notice should immediately raise concerns. Sometimes they'll even justify it by saying they're "working from home" or "need it for reference." Maybe. But if that activity spikes immediately before resignation, it's worth investigating.

2. Unusual downloading or printing activity. Most employees have predictable habits. Then, two weeks before resigning, they download thousands of files they've never previously accessed. Or print hundreds of pages. Or export an entire CRM database. Volume matters. Timing matters even more.

3. Plugging in personal USB drives or external hard drives. USB devices remain one of the fastest ways to walk out with gigabytes of proprietary information. Most organizations can monitor—or even block—these transfers. If your systems aren't logging USB activity, they should be.

4. Cloud uploads. Dropbox. Google Drive. OneDrive. iCloud. Personal cloud storage has largely replaced the thumb drive as the preferred method of taking company information. Watch for large uploads to personal accounts, particularly after hours.

5. Accessing information unrelated to the employee's job. Salespeople suddenly reviewing engineering files. Engineers downloading HR records. Finance employees opening customer databases. Curiosity isn't always innocent. When employees begin accessing information outside their normal responsibilities shortly before departure, ask why.

6. Odd-hour activity. A longtime employee who always worked 8:30 to 5 suddenly starts logging in at midnight. Or on weekends. Or while supposedly on vacation. Sometimes there's a perfectly innocent explanation. Sometimes there isn't.

7. Deleting evidence. Ironically, people trying to hide theft often create another red flag. Large-scale email deletions. Deleted folders. Cleared browser histories. Attempts to disable logging. Employees trying to erase their tracks often leave new ones.

8. Sudden interest in confidential projects. Employees who are leaving sometimes begin asking for access they've never needed before. "I just wanted to understand the project." Maybe. Or maybe they wanted one last chance to copy it.

9. Competitor timing. An employee resigns on Friday. Starts at your direct competitor Monday. Combined with suspicious electronic activity before departure, that timing deserves attention. Competition is legal. Taking your former employer's trade secrets to help your new employer compete isn't.

Apple may eventually prove its allegations. OpenAI may successfully defend against them. That's what litigation is for. Prevention, however, is far easier and much less expensive than litigation. Indeed, employers shouldn't wait until they're filing a lawsuit to think about protecting their confidential information.

Have written confidentiality agreements.
Limit access to sensitive information on a need-to-know basis.
Monitor unusual data activity.
Conduct meaningful exit interviews.
Collect company devices immediately.
Disable access promptly.

And if your IT team sees an employee forwarding confidential files to a personal Gmail account the day before they resign? Don't ignore it.

More often than not, trade secret theft announces itself before the employee ever walks out the door. The question is whether anyone notices.

WIRTW #802: the 'it's a small world' edition

I love to travel. It's not just about the places you see or the things you do. It's also about the people you meet.

"Where are you from?" is one of the best conversation starters when you're traveling. That simple question just led to one of the most surreal experiences of my life.

My wife and I were on the ferry from Split to Korčula when a family sat down next to us, and we started chatting.

"So, where are you from?" the dad asked.

"Cleveland," my wife replied.

"But I grew up in Philly," I added.

"Philly? Me too," he said, giving me a fist bump.

"Where in Philly?"

"The Northeast."

"Same! Where did you go to high school?"

And that's when things got downright weird.

We didn't go to the same high school. As it turns out, he went to Central and I went to George Washington. But we both graduated in 1990, attended the same middle school, and discovered we have dozens of mutual friends. He even remembered my middle school homeroom number, a fact I had long forgotten.

Forty years after leaving Baldi Middle School, we finally became friends … on a ferry in Croatia. All because one of us asked a fellow traveler, "Where are you from?"

The world is a big place. Sometimes, though, it has a funny way of reminding us just how small it really is.

Here's what I read this week that you should read, too.

EEOC Rescinds Longstanding Affirmative Action Guidance — via Employment Law Letter

The Big Ten: EEOC's new agenda — via Robin Shea's Employment & Labor Insider

NLRB Advice Memorandum Confirms Lawfulness of Non-Competes and Raises Questions About Separation Agreements — via Trading Secrets

Fired After 3 Hours: What a Fast-Food Owner's Viral Move Teaches Us About Training New Hires — via Suzanne Lucas, the Evil HR Lady

"The Cliques Aren't Going Anywhere" Is Not a Defense to a Hostile Work Environment Claim — via Eric Meyer's Employer Handbook Blog

Workplace Investigations: Five Key Takeaways, Part One, Part Two, and Part Three — via Employment Law Worldview

Time to Talk about "The Rizz" — via Robin Schooling

The End of Independent Federal Agencies Will Change Your Business — via Harvard Business Review

Birthright citizenship: "We break no new ground today" — via SCOTUSblog

Let's talk about what your company discovered after an employee left — via Ask a Manager

Rising 'bring your own AI' trend can spell trouble for employers — via HR Dive

Questions for Fathers — via The Chief Organizer Blog