Stop WOKE Act: What Florida's crackdown on DEI means for employers

Florida, historically, and especially during the COVID-19 pandemic, has been knows as one of the best places to operate a business. Now, however, with the passing of the Stop WOKE Act, Florida may soon become the first in the country to prohibit certain types of training in the workplace, creating traps for businesses who fail to adhere to a new law that could essentially end popular diversity and inclusion training programs.

The “Stop WOKE Act,” which was first introduced in December 2021 by Gov. Ron DeSantis, was quickly passed by the House on Feb. 24. The bill still needs to be approved by Senate and then signed into law, but as Republicans hold a majority in the Senate and DeSantis is in full support of the bill, it is likely to be approved and signed into law.

Related: Despite best of intentions, DEI strategies often fall short

The Stop WOKE Act bans, among other things, the teaching of critical race theory, which addresses systemic racism in the United States. The act applies to both school and the workplace. With respect to the workplace, the act covers with at least 15 employees and states that an employee may sue their employer for discrimination if the employer attempts to establish a training program that discusses Black history, LGBTQ+ issues, and other concepts of injustice and discrimination.

The act targets training sessions that would lead people to think that they bear personal responsibility for historic wrongs because of their race, color, sex or national origin. Further, the act bans training sessions in the workplace that compel people to believe that they are “morally superior” to members of another race, color, sex or national origin or that any race, color, sex or national origin is oppressed or privileged. More specifically, any mandatory trainings or discussions that “compels” employees to believe the following will be prohibited under the act:

• 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 should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin; and

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

Referring to the act as “dangerous,” critics believe that it discriminates against and singles out minorities. Most critics state that the bill is not necessary and will only serve to disadvantage minorities. As stated by Cathryn M. Oakley, State Legislative Directory and Senior Counsel at the Human Right Campaign, the act is “a thinly veiled political attack to marginalized communities [and only] fuels the discriminatory agenda of extremist legislators.”

Further, as Florida has more pressing issues that deserve attention right now, critics state that the quick passing of the bill makes it evident that Florida has made banning the teaching of critical race theory a priority over critical issues such as the housing crisis, wage disparity, and climate change, which are all issues that disproportionally affect minorities. Indeed, as Florida is quickly becoming one of the most expensive states to live– with some of the most stagnant wages— critics state that resources should be focused on combatting these issues.

Supporters, however, argue that the act ensures that employees of a certain race, color, sex, and national origin are not forced to feel guilt, discomfort, or any forms of psychological distress based on the treatment of members of other protected classes in the past. DeSantis described the legislation as a tool for business and employees to fight back against “work indoctrination.” Supporters argue that the act does not ban the teaching of critical race theory, but instead, encourages the teaching of history without the endorsement of a certain political ideology.

Whether employers support the act or not, Florida employers will have to tread very lightly when it comes to diversity and inclusion training, if the act is signed into law. The act does not outright ban diversity and inclusion training, but employers will have to walk a thin line to promote diversity and inclusion without endorsing any of the concepts above as it provides many avenues for employees to sue for discrimination. Employers must be sure to consult with their attorneys before having any diversity and inclusion training at the workplace. Any diversity and inclusion training program that makes an individual feel guilty or uncomfortable could be considered an unlawful employment practice and could subject a company to legal action under the act.

As the act provides for a private right of action, if it becomes law, employment attorneys must work diligently to ensure that their clients aren’t in violation of the act when their clients put on diversity and inclusion training programs. Employment attorneys must make sure that diversity and inclusion training programs created by their clients or for their clients are objective in nature. The act pushes employers to teach “facts” and not “opinions.” However, given the subject, it may be difficult for employers to prepare diversity and inclusion training programs that don’t unintentionally endorse any of the above concepts.

To ensure that there are no unintentional violations of the act, employment attorneys should take an active role, if not a lead role, in preparing diversity and inclusion training programs for their clients. This is particularly true for multi-state employers who may use diversity and inclusion programs in other states and believe that those programs can also be used here in Florida.

While such programs may be acceptable in, for example, New York, it is very possible that a diversity and inclusion training that is perfect for New York employers may get Florida employers into trouble, if and when the act passes and is signed into law. Employment attorneys should pay close attention to the act as it works its way through Tallahassee and be prepared to assist their clients in complying with the act, if and when necessary

Labor and employment litigation attorney Andrew M. Gordon is a Fort Lauderdale partner with Hinshaw & Culbertson. He may be reached at agordon@hinshawlaw.com. Jessica Turner is a labor and employment litigation associate with the firm. She may be reached at jturner@hinshawlaw.com.  

Read more: 

• DEI training for organizations wanting to improve their culture and climate
• Fair-chance hiring: A DEI-friendly solution to talent shortages
• Focusing on diversity, equity and inclusion as individual concepts is key to curbing the Great Resignation