Wary Court Mulls Religious Claim Over Race, Gender Training (1)

A lawsuit by two Native American, Christian employees of a Minnesota psychiatric hospital appears to be on shaky ground after two federal appeals court judges expressed skepticism over claims that their objections to anti-racism and gender identity training caused them to suffer adverse employment actions.

Joseph Norgren and his son and former co-worker Aaron Norgren are seeking to overturn a lower court order dismissing allegations that the trainings the Minnesota Department of Human Services required its employees to complete contradicted the Norgrens’ sincerely held religious beliefs and ran afoul of their First Amendment rights by compelling them to speak contrary to their personal views.

But during oral argument Thursday at the US Court of Appeals for the Eighth Circuit, Judge David R. Stras pushed back on the Norgrens’ claim that the agency illegally compelled them to express support for views they find objectionable.

This case comes as federal courts are grappling with religious-based challenges to a wide swath of company measures—from diversity, equity, and inclusion programs to anti-bias training and pronoun policies.

Stras told James Dickey of the public interest law firm Upper Midwest Law Center, which represents the Norgrens, that the Eight Circuit’s 2019 Telescope Media Group v. Lucero decision requires a plaintiff bringing a free speech claim to show that the government forced them to express a viewpoint they disagree with.

“And here, all you have is you have to watch something,” the judge said. “If there were some allegations that you had to sign something that said, ‘I agree with everything in this video,’ and you had to go around saying, ‘I believe in diversity,’ you might have a claim.”

“But I don’t see where the compelled speech is,” Stras added.

Dickey maintained that the computer-based workplace anti-racism training unlawfully mandated Minnesota DHS employees to take a “full minute of silence for the murder of George Floyd” and instructed them to to stop using the phrases “I am not a racist” or “I can’t be a racist.”

But the attorney also acknowledged that no worker faced any threats of disciplinary actions if they failed to participate.

Aaron Norgren also accused the agency of retaliation by denying him a promotion after filing a complaint about the trainings with the Equal Employment Opportunity Commission.

The retaliation argument is “one thing that troubles me” because there’s no evidence that Aaron Norgren was in fact eligible for a promotion, Stras told Dickey. “He just wasn’t qualified.”

Accommodation Claim

Joseph Norgren worked as a security counselor at the Minnesota Security Hospital for 27 years. His son, who’s still employed at the hospital, has been working there for more than seven years, according to their appellate brief.

The Norgrens opposed the hospital’s gender identity training—which covered the use of workers’ preferred pronouns—on the basis that it conflicts with their religious belief that “God created only two sexes and two genders.”

Both unsuccessfully sought a religious exemption from the gender identity training, though they never asked their employer to exclude them from the anti-racism training, according to court papers.

But Judge Ralph R. Erickson on Thursday briefly echoed the US District Court for the District of Minnesota’s finding that Joseph Norgren informed his supervisor three weeks before his exemption was denied that he intended to retire in 2021. The judge implied that Norgren wasn’t forced to quit because of the trainings, as he already planned to leave.

He told his supervisor “weeks before the protection action ever occurred that he’s going to retire,” the judge said.

Dickey responded by insisting that the trainings created a hostile work environment, so his client quit due to the “built up hostility” he endured.

The Eighth Circuit was asked to clarify the pleading standard for religious discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act as they relate to workplace diversity trainings. But the judges who heard argument Thursday didn’t address this issue.

Dickey argued that the district court inappropriately used the strict “summary-judgment-like standard” at the pleading stage to dismiss the case. Employees asserting discriminatory conduct by an employer can hardly be expected to meet that burden before discovery is conducted, he said.

The Norgrens plausibly and sufficiently alleged their claims to survive a motion to dismiss, Dickey told the appeals court.

Qualified Immunity

The Minnesota DHS urged the appeals court to affirm the district court’s ruling, saying the agency didn’t engage in any illegal conduct that violated the workers’ free speech or caused any adverse employment actions.

Another key argument was that Minnesota DHS Commissioner Jodi Harpstead is entitled to qualified immunity, Nicholas J. Pladson of the Minnesota Attorney General’s Office, who argued for the agency, told the court. The legal doctrine protects government officials from individual liability unless the official violated a clearly established constitutional right.

The Norgrens not only failed to show that Harpstead personally interacted with them and was involved in their employment, but they also didn’t allege that she compelled them to make or refrain from making any statements relating to anti-racism or gender identity issues, Pladson said.

The district court endorsed this argument when it dismissed the case.

“I would be extraordinarily surprised if Commissioner Harpstead herself individually created these videos, which seems to be the implication of the complaints,” Pladson said.

Judge Michael J. Melloy also sat on the Eight Circuit panel.

The case is Norgren v. Minn. Dep’t of Human Servs., 8th Cir., No. 23-01208, oral argument held 12/14/23.