Florida Judge Blocks Portion of WOKE Act Dealing with Race-Related Workplace Training

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

On August 18, 2022, Chief U.S. District Judge Mark Walker suspended a portion of Florida’s Stop the Wrongs to Our Kids and Employees (WOKE) Act (the Act), a controversial bill backed by Gov. Ron DeSantis, that restricts how companies and schools discuss certain aspects of diversity, equity, and inclusion DEI). In Honeyfund.com, Inc. v. DeSantis, a companion case to Falls v. DeSantis, the U.S. District Court for the Northern District of Florida has already issued a preliminary injunction against the portion of the Stop WOKE Act prohibiting eight types of employer conduct (see below). Chief U.S.District Judge Mark E. Walker, in his August 18 decision, noted that (1) the Stop WOKE Act prohibits speech based on the content of the speech, and (2) violates the First Amendment. Additionally, Judge Walker determined the Act violates the 14th Amendment because the eight types of prohibited conduct are too vague for employers to understand what kind of training would be compliant with the Act’s regulations l. Judge Walker issued a preliminary injunction against several Florida officials, presently stopping the state of Florida from prosecuting any employer for suspected violations of the Stop WOKE Act.

What Did the Act Prohibit?

The Act makes it an unlawful employment practice under the Florida Civil Rights Act (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 Injunction Mean for Employers?

The injunction does not mean the law has been permanently declared unconstitutional. Instead, it prevents the state of Florida and any Florida state officials from prosecuting any alleged violations of the Stop WOKE Act until a final decision is rendered. The state of Florida may appeal the preliminary injunction, at which point an appellate court could overturn the injunction before the trial is completed. Florida employers should still review their training programs to determine if they could be perceived as violating the Stop WOKE Act, as the current injunction may only temporarily stop enforcement of the Act.

How Traliant’s Training Complies With the Act

Even with the current injunction preventing full enforcement of the Act, the Act does not bar employers from mandating workplace training that addresses the topics described in the law. Instead, it prohibits training that promotes, advances, or compels employees to believe or adopt those concepts. As such, workplace training programs that present the concepts objectively, without endorsing or advocating them, should avoid violating the Act.

Traliant has carefully reviewed the Act’s requirements and is confident that its online DEI, sexual harassment, and other library of training courses do not violate Florida’s Stop WOKE Act.

While employers must comply with the new Florida law should it be allowed to go into effect, they should not be discouraged from providing employees thorough and careful training on these important topics.

At Traliant, our team of compliance advisory experts will continue to closely monitor any future regulatory guidance or legal claims that may clarify the Act’s regulations on workplace training programs in Florida.

If you have any questions about the Stop WOKE Act or Traliant’s extensive training programs, please contact us.