On April 22, 2022, Florida Governor Ron DeSantis signed into law so-called “anti-woke” legislation, amending the Florida Civil Rights Act and potentially limiting the ability of employers to include discussions of “implicit bias” or systemic racism in workplace training relating to diversity, non-discrimination, and non-harassment. The bill becomes effective July 1, 2022, and appears largely to model a subsequently-revoked executive order issued during the prior presidential administration that purported to limit so-called “divisive” topics in training administered by federal contractors.
Under the legislation, it is unlawful for any covered employer (generally, those with employees in Florida and employing 15 or more employees company-wide) to subject any individual working in Florida, as a condition of employment, to training or instruction that “espouses or promotes” such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin:
- That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
- That an individual, by virtue of their race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- That an individual’s moral character or status as either privileged or oppressed is necessarily determined by their race, color, sex, or national origin.
- That 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.
- That 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.
- That 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.
- That 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.
- That 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.
The law provides that it does not prohibit discussion of these ideas “as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.” It is unclear, however, how broadly courts may interpret this provision, and specifically to what extent an employer raising these issues in the course of workplace training (whether as to diversity initiatives or other anti-harassment policies) may be held to “endorse” these concepts. It is likewise unclear whether the law will be challenged on free speech or other grounds.
The law also sets forth a series of prohibitions on the content of material taught to students and employees in the Florida K-12 public education system and requires that certain concepts related to U.S. and foreign history and civics be included in these curricula.
Because this amends the Florida Civil Rights Act, an employee will be able to file a private cause of action under this legislation but only after administrative remedies have been exhausted. At that point, the Florida Commission on Human Relations would be required to investigate the alleged violation and make a determination. If a lawsuit is subsequently filed, an employer could be responsible for actual and compensatory damages in addition to reasonable attorneys’ fees.
Littler principal Cindy-Ann Thomas previously explored these issues at length in podcasts available here and here. Given the uncertainty for employers as to the scope of the law, those with diversity, equity, and inclusion (DEI) initiatives may wish to review the scope of their training, as well as the contents of anti-harassment and other workplace diversity policies, with counsel.
Littler’s Workplace Policy Institute will keep readers apprised of developments.
