On April 22, Florida Governor DeSantis signed House Bill 7, more widely known as the “Stop WOKE Act.” This law amends the Florida Civil Rights Act (FCRA) and takes effect July 1, 2022. The Act will restrict certain content in workplace diversity trainings that make employees feel uncomfortable or guilty regarding certain concepts. Contrary to some news reports, this Act does NOT prohibit employers from conducting diversity, equity, and inclusion training altogether. These initiatives are as important as ever, and employers should proceed with these initiatives. Companies do, however, need to be aware of the restrictions and be mindful to avoid any prohibited discussions.
Florida employers with 15 or more employees may not 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” any of the following concepts:
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.
***Notably, the law may NOT be construed to prohibit discussion of the concepts listed above as part of a course of training or instruction. These concepts can be discussed, as long as the training or instruction is provided in an objective manner without endorsement of the concepts. Alternatively, employers could elect to provide training programs that promote or espouse any of the prohibited concepts without violating this Bill, if the training is provided on a voluntary basis, and not as a condition of employment.
Enforcement and Relief
Subjecting an employee to training that includes the prohibited concepts would be a violation of the FCRA. Thus, an individual who believes an employer violated this law would file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation. If an individual ultimately files a lawsuit and prevails, the court may award injunctive relief, back pay, compensatory damages, punitive damages up to $100,000, attorney's fees, and costs. If the Attorney General believes 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,” the Attorney General may file an action for damages, injunctive relief, and fines not to exceed $10,000 per violation.
Employers should monitor the law and any potential future regulatory guidance to ensure all training complies with these new requirements. It may be appropriate to include disclaimers in the materials, indicating that the training is not intended to compel employees to believe any of the concepts discussed. Of course, adding that language alone may not be sufficient if the content of the training includes discussion that might “compel” an employee to believe any of the prohibited concepts. Therefore, it is imperative for any trainer to be highly qualified and equipped to effectively handle questions and properly guide the discussion. As for companies that choose to proceed with training that may "compel such individual to believe" any of the prohibited concepts, they must make it clear that the training is truly voluntary and not a condition of employment.