We also discussed this in our Labor & Employment client alert here.
On March 10, 2022, the Florida legislature passed House Bill 7 (“HB 7”), the Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act, officially named “Individual Freedom,” but also known as the “Stop WOKE Act.” The bill applies to Florida employers with 15 or more employees and aims to restrict how employers conduct training on race and sex. Governor DeSantis signed the bill into law on April 22, 2022. The bill also imposes limits on how public schools can talk about race and gender, which is outside the purview of this blog.
What is The Stop WOKE Act (HB 7)?
HB 7 amends the Florida Civil Rights Act (Fla. Stat. Ann. § 760.10) to provide that subjecting a person, as a condition of employment, 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:
- 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, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- 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, collectivity, 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.
Can an Employer Still Conduct Diversity Training?
Yes. The bill does not prohibit discussion of the aforementioned concepts as part of a course of training or instruction, but says that such training or instruction must be given in an “objective manner without endorsement of the concepts.”
Why was this Legislation Passed?
The Stop Woke Act is the strongest legislation of its kind in the nation. According to Governor Ron DeSantis, “In Florida, we are taking a stand against the state-sanctioned racism that is critical race theory.” Critical race theory is defined by Meriam-Webster as “a group of concepts used for examining the relationship between race and the laws and legal institutions of a country and especially the United States.” This legislation is very controversial.
Does the new law create any type of liability for Florida employers?
Yes. Any employees who believe that they are required to participate in training that espouses any of the prohibited concepts discussed above can file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation. (This is similar to the process in which employees file Charges of Discrimination with the Commission.) Then, once aggrieved employees exhaust their administrative remedies, they can pursue a civil or administrative action against their employer. Remedies available under HB 7 include injunctive relief, back pay, compensatory damages, and punitive damages up to $100,000.
The Florida attorney general also can file a civil action for damages, injunctive relief, and civil penalties not to exceed $10,000 per violation when the attorney general has reasonable cause to believe that the employer has engaged in a pattern or practice of discrimination or otherwise engaged in discrimination that violates the laws of this state and such discrimination raises an issue of great public interest.
What should employers do if they want to continue to provide training on topics such as diversity, equity and inclusion?
If an employer has adopted a mandatory diversity, equity, and inclusion training program, it should consult with experienced employment counsel to determine whether the content of such program may “espouse, promote, advance, inculcate or compel” (i.e., encourage) employees to believe any of the prohibited concepts. If the training program encourages employees to believe any of the prohibited concepts, then the employer would be prohibited from making such training “a condition of employment” (meaning mandatory). However, the employer could still offer the trainings on a voluntary basis.
Significantly, HB7 does not prohibit mandatory trainings that mention the concepts discussed above. Rather, it only prohibits trainings that espouse, promote, advance, inculcate, or compel employees to believe those concepts. Thus, training/instruction that is given in an “objective manner without endorsement of such concepts” would likely comply with HB 7. This is a very fine line to draw.
If an employee challenges the manner in which its employer conducts the training, the employer would have to demonstrate that it presented the concepts objectively, but did not endorse the topics in the training. Obviously, determining objectivity is not that clear, and thus, opens the door to potential claims. One way to reduce potential liability would be to include disclaimers stating that the employer does not endorse any particular concept prohibited by HB 7 and that the training is purely educational and not intended to compel employees to believe any of the topics discussed. However, this type of disclaimer could be confusing to employees and send mixed messages.
Can employers anticipate any further guidance on this law?
It is expected that the State of Florida will issue further regulatory guidance. However, the timing of this guidance is unknown. The bill is slated to become effective on July 1, 2022.
What options does a Florida employer have in light of this new legislation?
- Consider delaying any diversity training until the interpretive regulations are issued;
- Review and remove any policies or publications that conflict with HB 7;
- Make diversity training (if any) voluntary and not mandatory. If the training is made voluntary, make it clear that those employees who choose not to attend are not somehow going to be disadvantaged in their jobs or careers; and
- If the training is mandatory, ensure that the program is balanced (i.e., taught in an objective manner) and clarifies that the employer is not endorsing any of the prohibited concepts. Consider utilizing disclaimers stating that the employer does not endorse any training or teaching that compels an employee to believe any of the concepts listed in Florida HB 7.
Minutes after Governor Desantis signed HB 7, a group of plaintiffs filed a federal lawsuit challenging the constitutionality of HB 7. Stay tuned! We will keep you apprised of any significant developments.