The Ninth Circuit Revives a White Employee’s Harassment Claims in Diemert v. City of Seattle

On September 28, 2026, the Ninth Circuit revived a white municipal employee’s claims that he experienced a racially hostile work environment in Seattle. The decision in Diemert v. City of Seattle allows those claims to proceed under Title VII of the Civil Rights Act of 1964 and Washington state law. It applies longstanding protections against racial discrimination traditionally applied to the protection of racial minorities to conduct associated, in part, with a city initiative intended to address racial inequality.[1]

The case invites an historical question with immediate consequences for public policy. How did civil rights laws enacted against a background of racial exclusion come to protect white employees asserting discrimination against them? The answer begins with the breadth of the rights Congress enacted. Those rights have long protected individuals across racial groups. Their application to particular remedial policies has required courts to examine the policies’ purposes, means, and effects on employees.

The plaintiff/appellant Joshua Diemert worked in Seattle’s Human Services Department. His evidence described repeated racial comments and incidents involving supervisors, coworkers, and trainers associated with the city’s Race and Social Justice Initiative. He alleged that a manager questioned what he could contribute as a straight white man. He also described discouragement from seeking a supervisory position, pressure to yield a leadership role to a person of color and statements attributing negative traits to white people. One supervisor allegedly made racial accusations and physically accosted him.[2]

Seattle disputes material parts of that account. The appeal required the Ninth Circuit to view the evidence in Diemert’s favor because the district court had entered summary judgment against him. The appellate court determined that a reasonable jury could find a hostile environment. It did not establish that the alleged conduct occurred or that Seattle was liable.[3]

The governing standard requires unwelcome conduct because of race that is sufficiently severe or pervasive to alter employment conditions and create an abusive environment. Courts consider the circumstances together, including frequency, severity, threats or humiliation and interference with work. Diemert’s appeal focused on whether the alleged conduct met the objective severity-or-pervasiveness requirement. The panel concluded that the combined evidence warranted further proceedings.[4]

The court also explained the limits of that conclusion. Employers may discuss historical and ongoing discrimination against people of color and seek to address racial barriers. Training undertaken for those purposes is not inherently discriminatory. Its content and implementation can nevertheless contribute to a hostile environment. The panel examined a workplace record extending beyond training sessions to alleged racial treatment by supervisors and coworkers.[5]

Other claims failed. The Ninth Circuit affirmed the rejection of constructive discharge, disparate treatment and retaliation. Diemert’s Equal Protection claim failed because he had not established a personal injury attributable to the alleged express racial classifications he challenged. The court therefore left important distinctions intact. Evidence sufficient to send a harassment claim forward did not establish every other asserted employment or constitutional violation.[6]

The history of protection for white plaintiffs reaches well beyond these contemporary disputes. The Civil Rights Act of 1866 guaranteed specified civil rights to citizens of every race and color, including equal rights to make and enforce contracts. Its immediate setting was emancipation and the denial of basic civil rights to formerly enslaved people. The contract-rights protection now codified in 42 U.S.C. § 1981 has roots in that legislation and reflects subsequent enactments and amendments.[7]

Congress used similarly broad language in Title VII in 1964. The employment statute protects “any individual” against discrimination because of race in hiring, discharge and the terms or conditions of employment. The original law excluded states and their political subdivisions from its definition of an employer. Congress extended coverage to state and local government employment in 1972, supplying the statutory connection to municipal employers such as Seattle.[8]

The Supreme Court directly addressed white employees’ protection in McDonald v. Santa Fe Trail Transportation Co. in 1976. Two white employees alleged that they had been discharged after an accusation of stealing company property while a Black employee implicated in the same incident was retained. The Court held unanimously that Title VII protected the white employees under the same standards applicable to Black employees. An employer could discipline misconduct. The allegations raised the separate question whether it had applied discipline according to race.[9]

The Court also held that 42 U.S.C. § 1981 protected white plaintiffs against racial discrimination in private employment. It examined the Reconstruction legislation’s history and concluded that Congress had adopted a principle of racial equality extending beyond the circumstances that principally prompted the enactment.[10]

White employees’ claims thus arise under established statutory protections. The frequently used label “reverse discrimination” does not identify a separate cause of action. It describes the circumstances in which a plaintiff invokes a prohibition on racial discrimination. Recognizing that legal history does not diminish the historical exclusion that gave rise to the statutes. It explains the relationship between that history and the rights Congress extended to individuals.

The Court preserved a further question in McDonald. The employer had disclaimed reliance on an affirmative-action program. The Justices expressly reserved whether such a program would be permissible. Three years later, United Steelworkers of America v. Weber addressed that issue in a private employer’s craft-training program.[11]

The plan in Weber temporarily reserved half the training places for Black employees to address a manifest imbalance in traditionally segregated skilled jobs. The Court upheld the plan under Title VII. It emphasized that the plan did not discharge white workers, absolutely bar their advancement or seek permanent racial balance. The decision concerned a particular voluntary remedy and established no general constitutional permission for government employers. Those limits matter when the case is invoked in present disputes over employment policy.[12]

In Ricci v. DeStefano in 2009 the Court considered another set of competing statutory obligations. New Haven discarded completed promotion-test results because of their racial distribution. White and Hispanic firefighters challenged the decision. The Court held that an employer taking intentionally discriminatory action to avoid disparate-impact liability needed a strong basis in evidence that it would face that liability without the action. Concern about numerical disparities alone was insufficient on that record. The majority also preserved room for employers to design fair selection procedures before administering them. It left the constitutional question unresolved.[13]

The recent development most directly connecting that history to Diemert is Ames v. Ohio Department of Youth Services. In 2025 a unanimous Supreme Court rejected an additional evidentiary requirement that some courts imposed on majority-group plaintiffs. Marlean Ames alleged discrimination because she was heterosexual. The lower courts required her to show circumstances suggesting that her employer was an unusual employer that discriminated against the majority. Justice Ketanji Brown Jackson’s opinion held that Title VII authorized no such additional burden.[14]

The Court relied on the statute’s protection of individuals and on McDonald. It returned Ames’s case for application of the proper standard without finding her employer liable. Diemert invokes that principle of equal statutory protection. A plaintiff’s membership in a majority group does not reduce the protection the statute affords. The plaintiff still needs evidence satisfying the requirements of the particular claim.

That evidentiary requirement helps explain a different result in Spengler v. Cooperative Educational Service Agency 7. In July 2026 the Seventh Circuit rejected a public employee’s race-discrimination claims arising from her objections to an employer’s required approach to racial equity. The record did not permit a finding that her race caused her demotion. The relevant requirements applied to employees of all races. The court separately returned a First Amendment claim concerning retaliation for her beliefs for further consideration. Disagreement over race-related policy and discrimination because of race presented distinct legal questions on that record.[15]

For legislators, these decisions make the operation of an employment policy central to its legal design. A policy’s stated commitment to equality leaves questions about how it assigns opportunities, how supervisors implement it, and how employees experience its requirements. Teaching the history of discrimination, improving access to training, and allocating positions by race involve different legal considerations. Legislation should identify which practices it authorizes and the evidence that supports them.

The cases also suggest a need to connect institutional objectives to individual safeguards. Lawmakers can ask whether a proposed remedy addresses a documented barrier, whether its burdens are justified, and whether it has an appropriate endpoint. They can require meaningful review of complaints and examine whether training encourages supervisors to assess employees through racial generalizations. These are questions about the administration of public policy that remain relevant even when its objectives command broad agreement.

Congress can clarify statutory obligations. State and local lawmakers must design their policies within federal law. Government employers also remain subject to constitutional requirements that statutory permission alone cannot settle. Diemert resolved the Equal Protection claim on standing grounds. It supplied no general constitutional judgment on every feature of Seattle’s initiative.

Diemert illustrates how longstanding individual protections can require close examination of conduct undertaken in an institutional effort to address inequality. Legislatures face a continuing question: how should public policy pursue remedies for documented inequality while preserving the protection against racial discrimination that the law extends to employees of every race?

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[1]   Diemert v. City of Seattle, No. 25-1188, slip op. at 17–24, 43–44 (9th Cir. Sept. 28, 2026) (reversing summary judgment on hostile-work-environment claims under Title VII and the Washington Law Against Discrimination).

[2]   Id. at 7–13, 20–24 (describing the employment history and evidence of alleged racial treatment considered cumulatively).

[3]   Id. at 7, 16–17, 24 (acknowledging disputed facts and construing the evidence in the nonmoving employee’s favor).

[4]   Id. at 17–21 (explaining the severe-or-pervasive standard and identifying the contested objective element). Id. at 19, 24 n.3 (permitting consideration of older incidents as evidence of hostility without reviving time-barred discrete claims).

[5]   Id. at 19–24 (recognizing legitimate race-related training while analyzing how training and workplace interactions may contribute to actionable harassment).

[6]   Id. at 24–32, 35–44 (affirming the remaining claim dispositions and finding no standing for the asserted Equal Protection claim).

[7]   Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (establishing specified civil rights without distinction of race or color). 42 U.S.C. § 1981(a)–(c) (protecting equal contract rights). McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 287–96 (1976)(examining the Reconstruction legislation’s origins and scope).

[8]   Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701(b), 703(a), 78 Stat. 241, 253, 255 (defining covered employers and protecting individuals against racial discrimination). Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2(1)–(2), 86 Stat. 103(extending coverage to state and local government employers).

[9]   McDonald, 427 U.S. at 275–84 (recognizing white employees’ Title VII protection and distinguishing permissible discipline from racially selective discipline).

[10]  Id. at 285–96 (examining Reconstruction legislative history and recognizing white plaintiffs’ § 1981 claims).

[11]  Id. at 280–81 n.8 (reserving the permissibility of affirmative-action programs).

[12]  United Steelworkers of America v. Weber, 443 U.S. 193, 197–200, 208–09 (1979) (upholding a bounded voluntary training plan and deciding no constitutional issue). Rescission of Guidelines on Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended, 91 Fed. Reg. 40,879, 40,883–85 (July 6, 2026) (removing the EEOC’s affirmative-action guidelines while declining to decide whether Weber and Johnson v. Transportation Agency had been effectively overruled). The agency’s rescission is distinct from a judicial overruling of Supreme Court precedent.

[13]  Ricci v. DeStefano, 557 U.S. 557, 562–63, 579–93 (2009) (requiring a strong evidentiary basis for the challenged action while preserving prospective fair-opportunity efforts and reserving constitutional questions).

[14]  Ames v. Ohio Department of Youth Services, 605 U.S. 303, 305–13 (2025) (rejecting an additional evidentiary requirement for majority-group plaintiffs and remanding without deciding liability). Diemert, slip op. at 19 (applying Ames to the principle that Title VII draws no distinction between majority-group and minority-group plaintiffs).

[15]  Spengler v. Cooperative Educational Service Agency 7, No. 25-2532, slip op. at 6–11 (7th Cir. July 8, 2026) (rejecting race-discrimination claims on the record and remanding a separately pleaded claim concerning retaliation for beliefs).