LawFlash

Florida ‘Stop WOKE’ Bill Could Impact Employers’ Diversity, Equity, and Inclusion Efforts

March 15, 2022

The Stop WOKE Act prohibits employers from requiring employees to participate in certain types of diversity, equity, and inclusion (DEI) training. The bill was recently passed by the Florida House and Senate; Governor Ron DeSantis is expected to sign it into law shortly.

Florida HB 7 would make it an unlawful employment practice under Florida law to “[subject] any individual, as a condition of employment . . . to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe” a defined list of concepts related to DEI.

The “prohibited concepts” listed in the bill are as follows:

  • Members of one race, color, sex, or national origin are morally superior to another.
  • An individual is inherently racist by virtue of his or her race, color, sex, or national origin.
  • An individual’s moral character or status as 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 bears responsibility for, should be discriminated against, or should receive adverse treatment because of actions committed in the past by other members of the same race, color, sex, or national origin.
  • An individual should be discriminated against or receive adverse treatment on account of his or her race, color, sex, or national origin, to achieve DEI.
  • An individual bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions committed in the past by other members of the same race, color, sex, or national origin in which the individual played no part.
  • Virtues such as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist or were created to oppress members of another race, color, sex, or national origin.

However, the bill states that it should not be construed to “prohibit discussion of the concepts listed . . . as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.”

The bill would be enforced in the same manner as Florida’s existing employment civil rights protections. A person who believes his or her rights were violated may file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation and then, in most cases, pursue a civil or administrative action. Remedies available under the law include injunctive relief, back pay, compensatory damages and punitive damages (not to exceed $100,000).

The Florida attorney general is also empowered to bring civil actions for damages, injunctive relief, and fines not to exceed $10,000 per violation when the attorney general has cause to belief an employer engaged in a pattern or practice of discrimination or otherwise engaged in discrimination that violates the law and raises issues of “great public interest.”

Impact on Employers Operating in Florida

If the bill is signed into law, employers operating in Florida will need to evaluate existing training programs to determine whether they “espouse, promote, advance, inculcate, or compel” (i.e., encourage) participants to believe any of the prohibited concepts.

If a training program encourages participants to believe any of the prohibited concepts, then an employer would be prohibited from making such training “a condition of employment.” In other words, an employer could no longer require an employee to participate in any DEI training course that promotes any of the prohibited concepts. An employer could still offer the trainings, however, on a voluntary basis. The key point is that the training cannot be mandatory.

As noted above, the bill does not bar employers from mandating trainings that mention these topics altogether. It only prohibits trainings that espouse, promote, advance, inculcate, or compel employees to believe those concepts. Thus, a training that presents the prohibited concepts objectively, without endorsement of the concepts presented in the training, would likely pass muster under the bill.

One potential way to mitigate risk would be to include disclaimers noting that the employer does not endorse any particular concept related to discrimination and that trainings are provided purely for education and are not intended to compel employees to believe any of the concepts discussed.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Miami
Samuel S. Shaulson
Kimberley E. Lunetta

Philadelphia
Larry L. Turner
Kimberly B. Altschuler

Princeton
Emily Cuneo DeSmedt
Terry D. Johnson

Washington, DC
Jocelyn R. Cuttino
Sharon Perley Masling
Grace E. Speights
E. Pierce Blue