What Florida’s New “Stop WOKE Act” Means for Employers’ DEI Training Programs

What you need to know: 

• Florida’s new “Stop WOKE Act” prohibits employers from requiring employees to participate in diversity, equity, and inclusion (DEI) training courses that promote certain concepts related to race, color, sex, and/or national origin.
• Employers may still require DEI training for employees. However, employers should conduct these trainings in a manner that cannot be interpreted as compelling, promoting, or advancing beliefs or concepts that are prohibited under the Act.

Overview

Florida’s “Stop WOKE Act” (HB7) (the “Act”) prohibits public and private employers from requiring employees to participate in training that promotes certain concepts related to race, color, sex, and/or national origin. Florida Governor Ron DeSantis signed the Act into law on April 22, 2022, and it will take effect on July 1, 2022.

It appears that many of the concepts prohibited in the law are not actually taught in most DEI courses. For example, the law prohibits training that teaches that members of a certain race are morally superior to another race; it’s difficult to imagine a DEI course exists that teaches this concept. Regardless, there is concern that the law may have a chilling effect on employers’ offering DEI training for fear that they will inadvertently violate the law. Plaintiffs have already filed a lawsuit, Falls v. DeSantis, asserting that the law violates the First Amendment on free speech grounds.

Who is Covered by the Act?

The Act applies to all public and private Florida employers who are subject to the Florida Civil Rights Act (FCRA). An employer is subject to the FCRA if they employ 15 or more employees, regardless of how many employees are in Florida. As such, out-of-state employers are subject to the FCRA (and, by extension, the Act) for those employees located in Florida. Employees who believe their employers’ workplace training violates the Act may file an administrative discrimination complaint with the Florida Commission on Human Relations (FCHR) and may also potentially seek damages against their employer under the FCRA.

What Does the Act Prohibit?

The Act makes it an unlawful employment practice under the FCRA to, as a condition of employment, subject any individual to training, instruction, or any other required activity that “espouses, promotes, advances, inculcates, or compels” such individual to believe any of the following concepts:

• Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
• An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
• An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
• 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.
• An individual, by virtue of his or her 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.
• An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
• An individual, by virtue of his or her 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.
• 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.

What Does the Act Mean for Employers?

Despite the list of prohibited concepts, the Act also states that it should not be construed to “prohibit discussion of the concepts listed . . . 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.” 

Florida employers should review their existing training programs to determine whether they promote, advance, or compel participants to believe any of the concepts now prohibited by the Act. If a training program encourages participants to believe any of the prohibited concepts, then an employer would be prohibited from making such training “a condition of employment.” In other words, an employer can no longer require an employee to participate in any DEI training course that promotes any of the prohibited concepts. It is important to note that employers can still offer such trainings; however, they must be on a purely voluntary basis (i.e., the training cannot be mandatory).

How Traliant’s Training Complies With the Act

As discussed above, the Act does not bar employers from mandating workplace training that addresses the topics listed in the law. Instead, it prohibits trainings that promote, advance, or compel employees to believe those concepts. As such, training programs that present the prohibited concepts objectively, without endorsing or advocating the concepts presented in the training, would avoid violating the Act.

Traliant is confident that its online DEI training, sexual harassment training, and all other courses do not violate the Florida Stop WOKE Act. For example, while Traliant’s Unconscious Bias course explores the concept of implicit bias, it does not in any way suggest that a person by virtue of their race is inherently racist. Rather, our courses teach the fundamental concepts of DEI: diversity, equity, and inclusion.

While employers must comply with the new Florida law, they should not be discouraged from providing employees training on these important topics.

At Traliant, our team of compliance advisory experts has reviewed our courses for compliance and will continue to closely monitor any future regulatory guidance or legal claims that may clarify the scope of prohibited content under the new law.