Florida’s “Personal Liberty Law” Makes Some Employee Training Discriminatory – Employee Rights/Labour Relations

Employers across the country are taking note of Governor Ron DeSantis’ latest bill that will have nationwide implications. On April 22, 2022, Governor DeSantis signed into law the “Personal Liberty Act,” which amends Florida’s civil rights law and is set to take effect July 1, 2022. The Personal Liberty Act expands exposure to Florida Employers’ Liability for Discriminatory Employment Practices, which now includes mandatory training and instruction on certain topics related to diversity and unconscious bias.

Mandatory training prohibited for employees

The Individual Liberty Act prohibits public employers and private employers with 15 or more employees from requiring any person, as a condition of employment, to undergo training, instruction or any other required activity that marries, promotes , advances, inculcates or compels (i.e., encourages) that person to believe in one of the following eight concepts:

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

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

  3. An individual’s moral character or status as privileged or oppressed is necessarily 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.

  7. An individual, by virtue 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, committed in the past by other members of the same race, color, sex or national origin.

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

The phrase “any other required activity” is not defined in the Personal Liberty Act, but the wording appears to cover all activities that employers require employees to participate in as a condition of employment. Under the Individual Liberty Act, any training, instruction or other activity required by an employer that promotes any of the eight specified concepts may constitute discrimination based on race, color, sex or national origin.

Mandatory training authorized for employees

The Personal Liberty Act includes a saving clause stating that employers are not prohibited from discussing any of the eight specified concepts in the course of mandatory employee training or instruction if the training or instruction is given objectively without endorsement of concepts. In other words, the Individual Liberty Act does not impose a blanket ban on employer training relating to the eight specified concepts, but it prohibits employers from endorsing any of the specified concepts or requiring employees endorse one of the specified concepts as part of a mandatory training, instruction or other required activity.

Enforcement mechanisms

Under the Florida Civil Rights Act, employees who believe their rights under the Individual Freedom Act are violated may file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation, and then, most cases, bring administrative actions or civil suits seeking injunctive relief, back wages, compensatory damages, and in some cases, punitive damages (not to exceed $100,000).

Additionally, the Florida Attorney General is empowered to bring civil actions against employers for damages, injunctions, and civil penalties of up to $10,000 per violation where the Attorney General has reason to believe an employer has engaged in to a pattern or practice of discrimination or otherwise engaged. in discrimination which violates the law on personal liberty and raises questions of great public interest.

Legal challenge

Shortly after Governor DeSantis signed the Personal Liberty Act, a group of individuals filed a lawsuit challenging the constitutionality of the new law. The plaintiffs allege that the law imposes unconstitutional restrictions on speech based on views, in violation of their First and Fourteenth Amendment rights. The plaintiffs seek a declaration that the Personal Liberty Act is unlawful, as well as an injunction prohibiting its application. The case is pending in the Tallahassee Division of the United States District Court for the Northern District of Florida.

Impact on Florida Employers

Assuming the Personal Liberty Act survives any challenges to its constitutionality, the changes outlined above will come into effect on July 1, 2022. focus on diversity and unconscious bias. If there is any doubt that a particular training could be perceived as embracing, promoting, advancing, inculcating or compelling (i.e. encouraging) participants to believe in any of the eight specified concepts, l The employer should then consider whether he can make this training voluntary. for all employees.

Florida employers should also consider including disclaimers in all mandatory employee training, instructions or other activities stating that the employer prohibits all forms of discrimination against employees, whether the training or instruction is provided to educate employees on the content of the employer’s anti-discrimination policy. policies, that the training or instruction does not endorse any of the concepts listed in Florida Statutes Section 760.10(8)(a), and that the training or instruction is not intended to require an employee to believe or support any of the concepts discussed.

The Personal Liberty Act may encourage employers to stop providing anti-discrimination training for employees altogether, but the risk of doing so must be carefully weighed. Anti-discrimination training can provide employers facing hostile work environment allegations with a layer of protection under the Faragher/Ellerth defense. This affirmative defense recognizes the employer’s efforts to prevent wrongdoing in the workplace through employee training programs. Courts have consistently held that to satisfy this defense, employers must educate employees on the content of the employer’s anti-discrimination policies. In other words, an employer who stops all anti-discrimination training may lose the potential benefit of Faragher/Ellerth defense. This should be an important consideration for employers deciding whether or not to discontinue providing anti-discrimination training instead of modifying existing training and instruction to comply with the Personal Liberty Act.

Buchanan has a coordinated team of labor and employment attorneys ready to help employers navigate personal liberty law and modify training, instruction or other required activities of employees who may be affected by the provisions of this new Florida law.

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