On July 1, 2022, the law Florida Governor Ron DeSantis labeled the “Stop the Wrongs to Our Kids and Employees,” or Stop WOKE (“Act”), is set to go into effect, amending Florida’s employment discrimination laws state wide. The Act is currently facing a First Amendment challenge in Florida. However, on Monday, June 27, 2022, a federal court in Florida ruled that the Act could move forward and take effect as scheduled.
As such, Florida employers should be aware of the Act’s requirements. Under the Act, it will now be an unlawful employment practice for employers with fifteen or more employees to require any training or program that “espouses, promotes, advances, inculcates, or compels” an employee to believe any of the following notions:
- that members of one race, color, sex, or national origin are morally superior to members of another group;
- that an individual, due to his or her race, color, sex, or national origin, is intrinsically racist, sexist, or oppressive;
- that an individual’s privilege or oppression is inherently determined by his or her race, color, sex, or national origin;
- that members of one race, color, sex, or national origin cannot and should not try to treat others without respect to race, color, sex, or national origin;
- that an individual, based on his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or treated adversely because of, past actions of his or her ancestors;
- that an individual, due to his or her race, color, sex, or national origin, should be discriminated against or treated adversely to achieve diversity, equity, or inclusion goals;
- that an individual, due to his or her race, color, sex, or national origin, bears responsibility for prior actions committed by other members of the same race, color, sex, or national origin, and therefore must feel guilt, anguish, or other emotional distress because of those supposed actions; or
- that some virtues, including merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are inherently racist or sexist, or were invented by members of a certain race, color, sex, or national origin to discriminate against or oppress others of a different race, color, sex, or national origin.
In other words, Florida employers cannot require employees to attend or stream (if a webinar) diversity and inclusion programming which teaches any of the above listed ideas.
So, what does this all mean? To be honest, it is not clear. From the text of the law and public comments by elected officials, it looks like Florida is attempting to restrict employers from teaching or promoting diversity and inclusion programming that discusses the origins of systemic racism and privilege while also restricting how employers deal with these issues in the workplace. Specifically, the law seems to prohibit teachings that make employees feel personally responsible for the discrimination suffered by traditionally oppressed groups or feel ashamed of their own personal privilege or freedom from oppression.
Without a clear guidance on the specific types of programming that trigger this new law, it begs the question - how should employers approach diversity, equity, and inclusion (“DEI”) training in the workplace? Is the Act a prohibition against all DEI programming? We don’t think so.
At Seyfarth, we have been working with employers to delicately toe the line between compliance with the Act while also ensuring the employer’s DEI programming is still effectively promoting its values. Employers recognize that DEI efforts are here to stay. One way we have been working together to revise programming, as necessary, to clarify that the employer’s diversity and inclusion programming is in response to the employer’s values and are not due to external political forces.
An example of how we have counseled on this issue is by working with a client to re-tailor its already established diversity and inclusion programming to emphasize that respect and inclusion for all employees, as well as creating opportunities for all, aligns with the Company’s values, business goals and policies. We suggested to the employer that the diversity and inclusion programming should demonstrate that inclusion is a focal point of the Company’s strength. The training should focus on valuing and respecting different backgrounds/experiences and realizing that such differences will benefit the employer’s culture and outcomes, for all.
Potential programming can also explore how diversity in the workplace is about recognizing and appreciating differences and creating avenues for growth and opportunity. Being a diverse, inclusive organization means championing a culture where each person feels seen, heard, and supported. It results in attracting and retaining the best employee talent, as well as increasing productivity and efficiency. Organizations that successfully value diversity and foster sensitivity, respect and inclusion among employees have a clear competitive advantage.
Through this counseling, we are encouraging employers to abstain from blaming certain groups of people for the causes of racism and sexism and instead, focus on how the employer is working to fix these problems and why it is important for the employer to do so. The focus on the programming should be about the benefits diversity and inclusion bring the workforce, and why it is important for employees to recognize these benefits as well.