The Vermont Attorney General’s Office mounted a defense on behalf of state agencies and employees who are being sued by a local government employee who claims he’s the victim of “adverse” working conditions because of the color of his skin (white) and his gender (male).
Benjamin Morley, of Orleans, an adult Vocational Rehabilitation Counselor at Vermont Division of Vocational Rehabilitation in Newport, filed the suit in U.S. District Court last month, naming several defendants, including the Governor’s Workforce Equity and Diversity Council, the Vermont Department of Aging and Independent Living and the Vermont Division of Vocational Rehabilitation and state employees Allison Land, Elizabeth Harrington, Diane Dalmasse, Karen Blake-Orne, Heather Batalion and Hibbard Doe.
The complaint alleges that through his employment, “(Morley) has been shamed, humiliated, reprimanded, excluded from assignments and leadership positions, and threatened with termination because he is a white male.”
The lawsuit claims constitutional rights related to equality, religious freedom and freedom of speech are being violated through “mandatory indoctrination into a political/religious dogma called ‘Diversity Equity and Inclusion.’”
Morley has been employed with the Division of Vocational Rehabilitation for two years. He is being represented by attorney Deborah Bucknam, of Walden.
Bucknam filed the suit with the U.S. District Court in Rutland on Nov. 15. After getting a week extension, David A. Boyd, assistant attorney general, and Rachel E. Smith, the deputy solicitor general, filed their response in a motion to dismiss the case on Dec. 22.
Defense counsel contends Morley has no grounds to sue their clients, stating that simple assertions of wrongdoing is not enough. The attorneys also stated that their clients are protected by sovereign immunity as government agents and agencies and that only actions that violate federal law can overcome that protection. “Plaintiff has not plausibly alleged that they are engaged in an ongoing violation of federal law,” noted the defense response.
The defense position further contends that Morley has no grounds to raise religion as an argument. In the lawsuit, Morley asserts his “sincerely held beliefs” are being infringed upon through Diversity, Equity and Inclusion training and that the training itself is “dogma” proselytized by the state.
“Plaintiff lacks standing to bring a Free Exercise claim because he does not allege that the government has burdened or interfered with any religious belief or practice of his,” the defense notes. “Nowhere in the Complaint does Plaintiff allege that he is religious, much less explain how any conduct by any Defendant infringes upon a sincerely held religious belief of his. The “sincerely held beliefs” on which he predicates his Free Exercise claim are entirely secular.”
The defense then counters the assertion that the state is trying to elevate diversity training into a religious space. The Establishment Clause of the First Amendment bars the state from pushing any particular religion.
“Plaintiff’s Establishment Clause claim fails because diversity training is not a religion,” states the defense. “Plaintiff has not plausibly alleged that the diversity trainings’ ‘actual purpose is to endorse or disapprove of religion’ … its purpose concerns sociological and philosophical issues, not religious belief.”
In another challenge to Morley’s lawsuit, the defense takes issue with Morley’s claim that he missed out on assignments of new consumers because he is a male counselor. “The implication was that Morley, as a man, is incapable of acting professionally with a female consumer,” Bucknam notes in the lawsuit on Morley’s behalf.
Defendants characterize the event differently, stating that the incident in question was for Morley’s own protection.
“Actually, they were concerned that specific consumer might accuse Mr. Morley of sexual misconduct if he met with her alone because she has serious mental health issues and has made accusations of sexual misconduct against numerous men who worked with her in other contexts in the past,” notes the defense as a declaration by Karen Blake-Orne, a supervisor in the Newport office where Morley works.
Defense counsel further argues in its response to Morley’s complaint that diversity understanding and training is necessary and the Division of Vocational Rehabilitation must learn to provide a welcoming service to all clients, including racial minorities, which statistics show increased from 5 percent to 8 percent between 2016 and 2019.
“There is no serious question that minorities with disabilities face significant, structural disadvantages throughout their lives, or that DVR should acknowledge and respond to that reality,” notes the defense response. “The disadvantages of racial minority and disability status compound each other in ways that certainly inform DVR’s clients’ lives, and should inform DVR’s approach to serving its clients.”
Bucknam said she is preparing her response to the defense motion to dismiss; it’s due within 30 days of the defense filing.