February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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Florida’s “Stop Woke” Act Limits the Topics Employers Can Discuss in D&I Training

On March 10, 2022, Florida became the first state in the nation to pass a law (which Governor DeSantis is expected to sign) placing strict limitations on the topics that an employer can discuss when conducting diversity training in the workplace. The law, Florida House Bill 7/Senate Bill 148 (HB7), also known as the “Stop Woke Act,” targets both employers and schools and is in-line with Governor DeSantis’ agenda banning corporate trainings and school lessons that make people “uncomfortable” about the actions of their ancestors. Governor DeSantis uses the terms “woke” as an acronym he devised for “Wrongs to Our Kids and Employees.”

Specifically, the bill provides that employees can sue their employers for discriminatory practices under the Florida Civil Rights Act if the employer violates the statute by discussing the prohibited topics in its workplace training.

What is prohibited?

The “Stop Woke Act” prohibits employers of 15 or more employees from subjecting an employee to a diversity training that causes an employee to believe certain defined concepts or makes him/her uncomfortable as a result of these concepts being discussed.

The bill attempts to clarify the term “uncomfortable” by stating that feelings must be linked to diversity trainings that imply someone is responsible for actions “committed in the past by other members of the same race, color, sex, or national origin.” This essentially broadens the Florida Civil Rights Act’s definition of discrimination to include making another person uncomfortable over historical, factual events that involve people’s race, nationality, or gender.

If a diversity training program encourages participants to feel any of the prohibited concepts, then an employer would be prohibited from making such training a mandatory “condition of employment.” Significantly, this means that employers can no longer mandate that employees participate in any diversity training that promotes any of the prohibited concepts. Employers can still offer the trainings, but solely on a voluntary basis.

When pressed for an example of the concepts that the bill prohibits, Senator Manny Diaz, Jr., a Republican from Miami-Dade County who helped push the bill through the Senate, said, “It’s not about the feel. We can’t control how a person feels about a topic. But what we can control is to have a teacher not go to a student … and impose on a male student that they are sexist simply because they are a considered a male.”

While the rhetoric surrounding the bill remains divisive, HB7 of the Florida Civil Rights Act specifically provides as follows:

...that subjecting a person, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under the Florida Civil Rights Act:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.

4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.

5. An individual, by virtue of his or her race, color, 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, color, sex, or national origin.

6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7. An individual, by virtue of his or her race, color, 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, color, sex, or national origin.

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

Any Exceptions?

In order to withstand anticipated First Amendment challenges, the anticipated law does NOT prohibit discussion of the prohibited concepts as part of a course of training or instruction, provided that the training/instruction is given in an “objective manner without endorsement of such concepts.”

Thus, the bill does not bar employers from mandating trainings that mention these topics altogether. It only prohibits trainings that promote, advance, espouse, or compel employees to believe the prohibited concepts. A diversity training that presents the prohibited concepts objectively, without endorsement of the concepts presented in the training, is likely allowed under the bill.

However, it is not entirely clear where the line is drawn, leaving Florida employers in a quandary as to whether to conduct such trainings at all, and if so, how to conduct in a manner that is legally compliant. After Governor DeSantis signs the bill into law, it is expected that further regulatory guidance from the state will be released. The timing and content of this guidance, unfortunately, is still unknown.

What Is The Nationwide Impact?

As Governor DeSantis continues to highlight his “anti-woke” agenda at public events, it is expected that the bill will be signed into law and that other Republican-led states will likely follow suit. It is also expected that there will be legal challenges, as there was when former President Trump signed a similar Executive Order that applied to D&I training in the Executive Branch. After numerous unsuccessful legal challenges, that Executive Order was ultimately rescinded by President Biden. Therefore, there is no certainty that the Stop Woke Act will not suffer a similar fate, but for the time being it is the law in Florida and is expected to be in other states, so compliance is required to avoid employee lawsuits.

Best Practices

  • Employers should keep an eye on the Florida law, potential future regulatory guidance, and have their EEO policies and training materials reviewed by outside counsel for compliance and to remove or rewrite materials that could be problematic under the new law. The law is expected to take effect on July 1, 2022.

  • Discussion should be had with outside counsel about conducting mandatory diversity training in light of the new Florida law and the associated benefits and risks of doing so.

  • Employers in Arkansas, Arizona, Iowa, Montana, and Utah specifically should monitor legislative and executive branch activity, as similar laws and orders are being openly discussed in these states.

  • Employers should follow developments in other states carefully to see if similar laws are passed, as well as follow legal challenges that could result in the law ultimately being struck down.

© 2023 Foley & Lardner LLPNational Law Review, Volume XII, Number 87

About this Author

Cristina Portela Solomon Labor Employment Attorney

Cristina Portela Solomon is a labor and employment law attorney who primarily provides business solutions to employers seeking to be proactive in effectively managing their workforce while complying with the numerous and complex employment laws governing the employment relationship. She regularly counsels employers on workplace issues, with particular expertise in conducting workplace investigations involving sexual harassment, theft of trade secrets, and virtually any type of workplace misconduct.

She also drafts employment, non-compete and confidentiality agreements, employee...

Kate L. Pamperin Labor Lawyer Foley and Lardner

Kate Pamperin is an associate with Foley & Lardner LLP based in the Miami office where she is a member of the firm’s Labor & Employment Practice.

Kate began with Foley as a summer associate where she conducted legal research, wrote memos and assisted on diverse projects primarily with the Labor & Employment Practice.

Prior to joining Foley, Kate was a law clerk with the general counsel of the Broward County Schools. She drafted dispositive motions, prepared affidavits and assisted with depositions.