Update: Almost immediately after the Stop WOKE Act was signed into law on April 22, 2022, a lawsuit was filed on behalf of, among others, a group of teachers, a student and a diversity training director seeking to invalidate the law as a whole on constitutional grounds. Donald Falls, et. al. v. Ron DeSantis, et. al., Case No. 22-cv-00166-MW-MJF, is pending before Judge Mark Walker in the United States District Court for the Northern District of Florida. A hearing on the plaintiffs’ motion for preliminary injunction is set for June 21, 2022. Duane Morris will keep you updated on further developments of this and any other legal challenges.

On April 22, 2022, Florida Governor Ron DeSantis signed House Bill 7, the so-called Stop WOKE Act, into law. The new law, which amends the Florida Civil Rights Act (FCRA), will go into effect July 1, 2022. Florida employers who conduct diversity-related training in the workplace should take note of this new law since it prohibits an employer from mandating training and instruction that promotes, advances, espouses or compels employees to believe certain specified topics as delineated in the law. However, there remain any number of approaches that may be utilized to provide meaningful and effective implicit bias training in Florida.

By way of background, the FCRA is one of Florida’s anti-discrimination laws and, like Title VII of the Civil Rights Act of 1964, prohibits employment discrimination based on the usual protected characteristics, such as race, sex, age and religion. The FCRA covers Florida employers with 15 or more employees. Employees subjected to unlawful discrimination can file administrative claims against their employers, which would then be investigated by the Florida Commission on Human Relations (FCHR). Depending on the results of the FCHR’s investigation, employees may then be able to file lawsuits in court against their employers, seeking actual and compensatory damages as well as attorneys’ fees and court costs.

The Stop WOKE Act amends the FCRA to prohibit employers from “subjecting 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 that 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 their 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 their 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 their 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 their 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 their 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.

Does this mean that employers are prohibited from providing or requiring diversity and inclusion training altogether? Not at all.

First, the restrictions set forth in the Act do not apply to training that is provided to employees on a voluntary basis.

Second, with respect to mandatory training, the Act specifically provides that it does not prohibit discussion of the concepts set forth above as part of a larger course of training or instruction, provided that the training or instruction is given in an “objective manner without endorsement of the concepts.” In other words, the Act does not prevent an employer from mandating a training that discusses the prohibited topics in and of themselves. However, the Act does prohibit an employer from mandating a training that promotes, advances, espouses or compels employees to actually believe the prohibited topics.

In addition to its employment provisions, the law also contains provisions requiring that public K-12 schools teach certain subjects and refrain from “indoctrinating” students as to certain subjects.

What This Means for Employers

Florida employers who already conduct or are considering conducting “implicit bias” or similar training programs or implementing diversity, equity and inclusion (DEI) programs should consult with legal counsel to address what adjustments, if any, may be needed to any upcoming DEI programming or implicit bias training sessions. There are any number of useful tools and approaches to implicit bias training that may be utilized, including appropriate disclaimers and instructions to participants, to balance the limits of the new Act and your organization’s goal in providing meaningful and effective implicit bias training.