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What does Florida’s ‘Stop WOKE’ Act mean for employers?

United States
09.05.22
8
Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
A new law set to take effect on 1 July 2022 in the US state of Florida restricts what employers can cover in workplace diversity training.

 

On Friday, April 22, 2022, Florida Governor Ron DeSantis signed the ‘Stop WOKE’ Act (HB 7, the ‘Act’) into law. The Act’s name is intended as an acronym for ‘Stop the Wrongs to our Kids and Employees,’ but is also obviously meant to be a play on the concept of ‘woke,’ which is defined in Merriam-Webster’s Dictionary as an adjective describing one who is ‘aware of and actively attentive to important facts and issues (especially issues of racial and social justice).

The Act has drawn national attention and debate, as it creates legal restrictions and prohibitions on what public and private employers can say or promote in workplace training tied to race, colour, sex, and/or national origin. The Act could have potentially significant implications for employers wishing to cover topics such as structural racism, white/male privilege and unconscious bias in workplace anti-discrimination and diversity and inclusion trainings.

(The Act also imposes new restrictions on covering similar concepts in the public school and academic setting, purportedly rooted in opposition to instruction in concepts related to ‘critical race theory,’ and creates potential causes of action for school employees, students and parents against schools and school districts. The school-related provisions of the Act are beyond the scope of this alert.)

As discussed below, Florida employers will want to review any such planned training in anticipation of the law taking effect in July 2022, and also be sure to continue to monitor any developments impacting its application and implementation, including a pending legal challenge to the constitutionality of the Act, filed the same day the Act was signed by Governor DeSantis.

Who is covered by the Act?

The Act applies to all public and private Florida employers who are subject to the Florida Civil Rights Act (FCRA) (that is, those who employ 15 or more employees). It amends the FCRA to add a new basis for discrimination claims by prohibiting employers from requiring employees to attend mandatory training that encompasses and promotes belief in certain prohibited concepts. Employees who believe their employers’ training violates the Act may file administrative discrimination complaints with the Florida Commission on Human Relations (FCHR), and potentially civil suits against their employers for damages under the FCRA.

What exactly does the Act prohibit?

The Act specifically makes it an unlawful employment practice under the FCRA to, as a condition of employment, subject any individual to training, instruction, or another required activity that ‘espouses, promotes, advances, inculcates, or compels’ the individual to believe any of the following concepts:

  • Members of one race, colour, sex, or national origin are morally superior to members of another race, colour, sex, or national origin.
  • An individual, by virtue of his or her race, colour, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
  • An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, colour, sex, or national origin.
  • Members of one race, colour, sex, or national origin cannot and should not attempt to treat others without respect to race, colour, sex, or national origin.
  • An individual, by virtue of his or her race, colour, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, colour, sex, or national origin.
  • An individual, by virtue of his or her race, colour, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
  • An individual, by virtue of his or her race, colour, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, colour, sex, or national origin.
  • Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colour-blindness are racist or sexist, or were created by members of a particular race, colour, sex, or national origin to oppress members of another race, colour, sex, or national origin.

What diversity training is still permitted?

The broad language of the Act makes it difficult to discern exactly what is prohibited in some cases (for example, what might be seen as intending to cause employees to ‘feel guilt, anguish, or other forms of psychological distress’ and whether or not the person ‘played no role’). The Act also provides, however, that its amendments ‘may not be construed to prohibit discussion of these concepts … as part of a larger course of training or instruction, provided that the training or instruction is given in an objective manner without endorsement of the concepts.’ (Emphasis added).

Notwithstanding some of the confusion and debate created by the language in the Act, it appears that employers can still pursue their diversity initiatives, move forward with their strategic plans, and require employee attendance at diversity training that discusses concepts such as microaggressions, unconscious bias, cultural competence, racial colour-blindness, and structural racism. Employers should review the content and specific presentation of such training, however, to ensure the views provided in the training do not breach the prohibitions in the Act. For example, it appears that:

  • Employers may discuss important concepts like unconscious bias, without using language indicating employees should believe that certain groups of employees are inherently racist or sexist by virtue of their own race or sex, or that certain concepts were created by members of a particular race to oppress another, and without stating that employees should or must believe that certain individuals are ‘inherently racist, sexist, or oppressive.’
  • Rather than suggesting that certain concepts like ‘colour-blindness’ (i.e. stating that one ‘does not see colour’) are potentially racist, employers may explain the concept of colour-blindness and why it does not promote diversity, without noting that ‘colour-blindness’ is racist or sexist, or was created by members of a particular race, colour, sex, or national origin to oppress members of another race, colour, sex, or national origin.
  • Employers may also discuss the concept of ‘privilege’, not as solely based on race or gender, and that acknowledging privilege exists, based on multiple factors, may help foster and create a more inclusive workplace.
  • Employers may also presumably give examples of microaggressions and discuss the importance of understanding how conduct may be perceived by others, whether the underlying perception is accurate or not, and how to address and/or interrupt microaggressions.

What are the potential penalties for noncompliance?

Effective 1 July 2022, the Act makes it an unlawful employment practice under the FCRA to ‘subject’ employees to any mandatory training or instruction that is carried out in a manner that could be perceived as compelling or promoting belief in the prohibited concepts outlined in the Act.

Employers who violate the law would be subject to the same legal penalties as employers who discharge, refuse to hire, or otherwise discriminate against an applicant or employee on the basis of race, colour, religion, sex, pregnancy, national origin, age, disability, or marital status.

Employees who believe their employers have violated the Act can file complaints with the FCHR within a year of the alleged conduct, and then potentially pursue an administrative or civil action against their employers under the FCRA for money damages including legal fees, compensatory damages for mental anguish, loss of dignity, and other intangible injuries, and punitive damages capped at USD 100,000.

Is the Act lawful?

Within minutes of Governor DeSantis signing the Act, a group of plaintiffs filed suit in the US District Court for the Northern District of Florida in the case of Falls v. DeSantis, challenging the Act’s constitutionality. Regarding the prohibited ‘concepts’ in employment training, the complaint points out that:

‘the statute permits employers to offer training that disagrees with these concepts or takes a neutral position on them, however, any training that endorses those concepts now constitute[s] an unlawful employment practice.’

The lawsuit argues that employers are entitled to exercise their right to free expression under the First Amendment of the US Constitution and that the Act unlawfully restricts that right. More legal actions raising similar objections and concerns may follow in the coming days and weeks.

The Act is similar in many respects to the short-lived Executive Order 13950 (Combating Race and Sex Stereotyping) (‘EO 13950’), which President Trump signed on September 22, 2020, and that was subject to ‘free speech’ and ‘due process’ legal challenges before President Biden ultimately revoked it on January 20, 2021. (For information on the EO please see here and for information on its revocation and President Biden’s Executive Order calling for a ‘whole of government’ racial equity agenda, please see here)

The Act is broader in scope than EO 13950, however, and is not limited just to government contractors or those doing business with the state.

Before President Biden revoked EO 13950, a federal court in California granted a nationwide preliminary injunction stopping its implementation and enforcement on free speech and due process grounds. LGBTQ rights groups had filed a lawsuit in the Northern District of California against President Trump and several federal agencies and officials, seeking declaratory and injunctive relief from EO 13950 (Santa Cruz Lesbian and Gay Cmty. Ctr. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020)).

On December 22, 2020, shortly before President Biden’s revocation, the court ruled that EO 13950 violated the Free Speech Clause of the First Amendment ‘because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.’ The court also ruled that parts of EO 13950 were so vague they violated the Due Process Clause because ‘it is impossible for Plaintiffs to determine what conduct is prohibited.’

Given the similarities to EO 13950, the same concerns and arguments that were raised in response to EO 13950 may well be applicable and raised in response to the Act. Like EO 13950, in addition to the arguments raised in Falls, the Act is also arguably vague as to what conduct is specifically prohibited. Moreover, there will likely be arguments raised by some employers that the Act impermissibly chills the exercise of their constitutionally protected speech.

Similar constitutional law challenges and arguments were also raised in a pending federal lawsuit that was filed within days of Governor DeSantis signing the Florida ‘Parental Rights in Education’ law, which has become known nationally as the ‘Don’t Say Gay’ bill or law. (The law prohibits classroom instruction about sexual orientation and gender identity in kindergarten through grade 3, ‘or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.’)

What does this mean for employers?

Employers may still require training designed to promote diversity and inclusion awareness, as well as training designed to prevent discrimination in the workplace, but employers need to be sure to conduct this training in an objective manner that cannot be construed as compelling, promoting, or advancing certain beliefs tied to prohibited concepts under the Act.

It is also worth noting that the Act by, its literal wording, does not appear to apply to completely voluntary training and discussions of these concepts, even if facilitated by the employer.

A number of observers have expressed concern that the Act may have a chilling effect on training covering important topics, because employers may fear or be hesitant to address certain topics or issues that could potentially subject their businesses to legal claim, whether meritorious or not. Employers who are concerned with continuing to provide such training might want to consider including express disclaimers, making clear to employees that the employer is not endorsing or advocating belief in any specific concepts or theories related to discrimination covered in the training.

Another precaution may be to have employees sign an acknowledgment indicating that the employer has reviewed with them that it does not endorse the concepts discussed in the training, and is merely providing the content to increase employees’ awareness, understanding, and sensitivity to different perspectives, and to educate employees about concepts relevant to an informed discussion of diversity, equity, and inclusion.

Once the Act goes into effect on 1 July, employers should be on the lookout for further guidance or legal claims that may clarify the scope of prohibited content under the Act.

For more information about discrimination

Authors
Dawson
Dawn Siler-Nixon
Partner - United States
FordHarrison LLP
Louis D. Wilson
Partner - United States
FordHarrison LLP
Emily Chase-Sosnoff
Counsel - United States
FordHarrison LLP