Florida Employers Must Review Workplace DEI Trainings Under New Law – Employee Rights / Labor Relations

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Summary


On April 22, 2022, Florida Governor Ron DeSantis signed into law the “Stop WOKE” Act (HB 7) (the “Act”), which amends the Florida Civil Rights Act (“FCRA”) and imposes restrictions on content that public and private employers can use in workplace training related to race, color, sex and/or national origin. The law could have significant implications for employers who currently cover or intend to cover topics such as structural racism, privilege and implicit biases within diversity, equity and inclusion ( “DEI”), anti-discrimination, anti-harassment and other similar topics in the workplace. trainings. The law will come into force on July 1, 2022.

The law makes it an illegal employment practice for Covered Employers (Florida public and private employers with 15 or more employees) to “subject” any Florida employee to mandatory training or instruction who espouses or promotes belief in the following prohibited concepts:

  1. Members of a particular race, color, sex or national origin are morally superior to members of another race, color, sex or national origin;

  2. An individual, because of race, color, sex or national origin, is inherently racist, sexist or oppressive, consciously or unconsciously;

  3. An individual’s moral character or status (privileged or oppressed) is determined by 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 for their race, color, sex or national origin;

  5. An individual, because of race, color, sex or national origin, bears responsibility or should be discriminated against or treated unfavorably because of actions committed in the past by other members of the same race, color, sex or national origin;

  6. An individual, because of their race, color, gender or national origin, should be discriminated against or receive unfavorable treatment to achieve diversity, equity or inclusion; and

  7. An individual, because of race, color, sex or national origin, bears personal responsibility and must experience guilt, anguish or other forms of psychological distress because of acts in which he played no part, which were committed in the past by other members of the same race, colour, sex or national origin.

Although the language of the law is broad, it makes it clear that employers can still require training aimed at promoting awareness of the DEI and preventing discrimination in the workplace as long as it is “given in an objective manner without concept approval”. For example, workplace trainings can still cover topics such as microaggressions, implicit biases, cultural competence, racial color blindness, and structural racism as long as the topics are taught or discussed objectively and not may not be construed as “compelling, promoting or advancing beliefs”. related to concepts prohibited under the Act. »

It is important to note that the law does not appear to apply to voluntary training and discussions on otherwise prohibited concepts, even if such training or discussions are facilitated by the employer.

An employee who believes their employer’s trainings violate the law may file a complaint with the Florida Commission on Human Relations (“FCHR”) within one year of the alleged conduct, and thereafter, potentially file an administrative lawsuit. or civil liability under the FCRA for damages, including compensatory damages for mental anguish, loss of dignity, and other similar injuries, as well as attorneys’ fees and punitive damages capped at $100,000.

Shortly after the law was signed, a lawsuit challenging its constitutionality was filed in the U.S. District Court for the Northern District of Florida (Falls against DeSantis). Among other things, the lawsuit alleges that employees are entitled to exercise their right to free speech under the First Amendment to the US Constitution. The lawsuit is still pending for the moment and could be followed by other similar actions.

In the meantime, employers with operations and/or employees in Florida must take preparatory steps to comply with the law. Florida employers who conduct the DEI and other similar training independently or through vendors are recommended to consult with counsel regarding the specific content and delivery of such training and any related policies at the venue. work to ensure that they comply with the law. Similarly, multi-state employers with operations in Florida should be aware that a company-wide approach to trainings on these topics could unintentionally lead to illegal employment practices and harms, warranting a independent review of mandatory training for Florida employees.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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