November 30, 2022

Volume XII, Number 334

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November 29, 2022

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November 28, 2022

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Stopping “Woke”? Florida HB 7, The Bill That Attempts To Put Florida Employers’ DEI Efforts To Sleep

Recently, the Florida House and Senate passed Florida HB 7, also known as, Florida’s “Stop WOKE” bill. The soon-to-be Florida law will expand the language of Fla. Stat. Ann. § 760.10, to include the prohibiting of certain kinds of diversity, equity, and inclusion (DEI) training. Specifically, the bill provides that subjecting any individual to required employment training that “espouses, promotes, advances, inculcates, or compels such individual to believe” specific concepts will be unlawful.

We know what you’re thinking: What DEI concepts are soon to be unlawful? According to the Florida State Legislature, unlawful training will include concepts that teach:  

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

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

  • 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.

  • 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.

  • 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.

  • 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.

If you are a Florida employer that has embraced DEI training, you need to pay close attention to this bill. Employees who believe they were required to participate in training at work that espouses those concepts will have the option to file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation. And of course, a possible lawsuit, with compensatory and punitive damages not exceeding $100,000, could follow. The bill is not a friend of employers who have embedded DEI efforts into their DNA. However, not all is lost.

CAN FLORIDA EMPLOYERS “STAY WOKE?”

The bill is expected to be signed into law in July. Undoubtedly, the bill will give Florida employers pause in the DEI arena, but with “will”, there is a way!

The bill gives employers wiggle room– the bill’s language may

not be construed to prohibit discussion of [such] concepts. . . as part of a course of training or instructions. [However, such] training or instruction [must be] given in an objective manner without endorsement of the concepts.

While the language is broad, it leaves Florida employers with the opportunity to rebut a potential claim by arguing that their DEI training was conducted in an objective manner, regardless of whether the HB 7-prohibited concepts were presented. Obviously, objectivity is in the eye of the beholder, but you should look for training programs that are balanced and make clear that you are not endorsing any of the prohibited concepts.

So, if you are a Florida employer who wants to continue DEI training, you could:

  • Make your DEI training voluntary. If you do so, be careful that those who choose not to attend are not somehow disadvantaged in their jobs or their careers.

  • In mandatory training, provide clear disclaimers that the company does not endorse any training or teaching that compels an employee to believe any of the concepts listed in Florida HB 7. Keep in mind, however, that you need to deliver on the disclaimers. Having the CEO make comments about these concepts could undermine your efforts.

A great poet once said, “we may encounter many defeats, but we must not be defeated.” In the same spirit, for Florida employers who seek to implement and/or continue their DEI initiatives, all hope is not lost — stay woke.  

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 89
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About this Author

Whitney J. Jackson Commercial Litigation Lawyer Bradley Arant Boult Cummings
Associate

Whitney Jackson’s practice focuses on commercial litigation, employment, and intellectual property matters.

Whitney earned her J.D. (cum laude) from the University of Mississippi School of Law, where she served as associate articles editor of the Mississippi Law Journal, senator of the Student Bar Association, and vice president of the Black Law Students Association. While in law school, Whitney interned with the legal departments of Fortune 500 companies, where she assisted senior management in researching and analyzing various legal compliance matters. Whitney...

601.592.9968
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
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