On July 1, Florida employers who mandate diversity training programs for their workers would do well to take note of what those programs say — and how they say it.
The so-called “Stop Woke Act” passed by the Legislature this month and soon to be signed into law by Governor Ron DeSantis, limits how programs to promote diversity in the workplace can be presented to employees. The idea is to protect workers as well as school students from language that could make them “uncomfortable” by referring to past acts of prejudice and discrimination across the country.
Among other things, the bill prohibits “subjecting a person, as a condition of employment … to required training, instruction or any other activity” that requires that person to believe:
- Members of one race, color, sex or national origin are morally superior to members of another
- That an individual, because of race, color, gender or national origin, is inherently racist, sexist or oppressive, consciously or unconsciously
- That an individual’s moral character or status as privileged or oppressed is necessarily determined by race, color, sex, or national origin
- That an individual, by virtue of his race, color, sex or national origin, bears responsibility for … actions committed in the past by other members of the same race, color, sex or national origin .
- 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.
- An individual, because of his race, color, sex or national origin, bears personal responsibility and must feel guilty…because of actions…committed in the past by other members of the same race, color, sex or nationality. origin.
When pitching the bill’s idea late last year, DeSantis invoked the term “woke,” “Harm to our children and our employees,” as his title. He argues that whites suffer from presumptions served up in schools and workplaces that imply that they are inherently biased and racist against blacks and other minorities.
“In Florida, we take a stand against state-sanctioned racism which is a critical theory of race,” DeSantis said. “We will not allow Florida taxpayers’ money to be spent teaching children to hate our country or to hate each other.”
But labor and employment lawyers and other human resource advisers say the law has created a legal minefield for private and public sector employers. If employees end up feeling confused by the concepts and statements conveyed during the training sessions, the new law gives them the right to sue the employer.
As with last year’s legal and rhetorical war between the governor and some companies over COVID-19 vaccination mandates, employers appear to be in a waiting period with the new anti-wakefulness law.
“Last year, City of Fort Lauderdale management personnel participated in diversity and inclusion training to raise awareness and implement strategies to foster an inclusive environment for all employees,” said City Manager Chris Lagerbloom said in an emailed statement.
“The city also regularly offers optional diversity and inclusion training to staff,” he said. “Our human resources team will review the trainings in the light of current legislation.”
No more diversity training in Florida?
Some labor and employment attorneys who represent private sector employers believe that training programs have little or no future in the state.
“Diversity, equity and inclusion training will be a thing of the past in the State of Florida,” said Leonard K. Samuels, labor and employment law and commercial litigation attorney for the Berger Singerman firm in Fort Lauderdale.
“It’s risky to do it; it’s a hornet’s nest,” Samuels said. He added that the programs “are at great risk of no longer being part of corporate America or the state of Florida.”
Since the legislation is “fresh off the press,” Samuels said, “companies are all going to do their own analysis on this.”
The key questions: whether training programs will need to be radically changed or eliminated altogether.
A warning light for employers
For years, employers have created their own programs or purchased them from training companies specializing in the field in order to convey to their employees the importance of diversity, equal opportunity and fair play in the workplace. work.
But the insertion of the concept of “unconscious bias” into the teachings is relatively new, having been “advocated in recent years”, said Meredith Plummer, a labor and employment lawyer at the Gunster law firm in West Palm Beach.
“It’s not used by many people,” she said. But employers who do so should ensure that there is an ironclad record of what was said in the event that an employee intends to sue.
“We’ll want an accurate record of what’s being said so there’s not a ‘he said, she said’ situation,” Plummer said.
For employers, this is where the minefield begins: the law prohibits employers of 15 or more people from subjecting workers to training that leads them to believe in certain defined concepts, or makes them “uncomfortable” reason for the topics presented in the discussion. .
“The bill doesn’t say companies can’t talk about unconscious bias ideas,” Plummer said. “Employers are going to have to be very careful when discussing these topics.”
Opponents of the law say the law could trigger a flood of lawsuits from employees unhappy with diversity training and could hurt Florida’s ability to recruit and retain companies.
And there’s also fertile ground for bringing lawsuits alleging First Amendment free speech violations, lawyers say.
“The truth is, there’s plenty of water for both sides in a First Amendment challenge to this law,” said David Miller of Bryant Miller Olive, a labor and employment attorney who represents employers. of the public sector.
“I read a comment on this law by someone who said that the Florida Civil Rights Act and the Federal Civil Rights Act already provide a legal avenue for someone offended by this stuff to take legal action,” he said.
Companies under fire
On his official website, the governor takes aim at three major US corporations that he says promote critical race theory and practice “woke” corporate training:
- “Raytheon, the nation’s second-largest defense contractor,” has launched a critical race theory program that encourages white employees to confront their “privilege”, reject the principle of “equality” and “fund the police”.
- “Bank of America teaches that the United States is a ‘white supremacist’ system, encourages employees to become ‘woke at work,’ and teaches that white toddlers ‘develop racial bias between the ages of 3 and 5’.”
- “Google’s employee program claims that America is a ‘white supremacist system’ and that all Americans are ‘raised to be racist’.”
DeSantis also went to war with the Walt Disney Co., which opposed a related bill officially titled Parental Rights in Education, but known to many as the “don’t say gay” bill. Bill prohibits classroom teaching about ‘sexual orientation or gender identity’ for grades K-3 or in a manner that is not ‘age appropriate’ at all classes.
Disney said the bill “should never have passed and should never have been signed into law.” The company, which is Central Florida’s largest employer, has pledged to work to repeal or strike it down in court.
But now DeSantis is questioning the special treatment Disney has received over the years that has allowed it to issue tax-free bonds, regulate land use, and provide fire services, police and other essential public services.
This week he mentioned an exemption the company won in legislation that excluded companies that operate theme parks from a bill aimed at preventing social media from misrepresenting political candidates.
“At the end of the day, I don’t believe in special treatment for a society,” he said on Friday.