In March, Florida’s legislature approved the “Stop Wrongs to Our Kids and Employees (WOKE) Act.” The bill restricts how workplaces and classrooms around the state handle discussions surrounding race, gender and discrimination. The law, expected to take effect on July 1, 2022, will also prevent companies with 15 or more employees from subjecting “any individual, as a condition of employment … to training, instruction or any other required activity that espouses, promotes, advances, inculcates or compels such individual to believe” certain concepts related to diversity, equity and inclusion (“DE&I”).

The following concepts related to DE&I are specifically prohibited by the Act:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

According to the Act, an employer could be held liable for violating the Florida Civil Rights Act if (1) the employer discusses any of the prohibited DE&I topics during a mandatory workplace training and (2) causes an employee to believe certain defined concepts or makes him/her uncomfortable as a result of the concepts being discussed. The bill attempts to clarify the term “uncomfortable” by stating that feelings must be linked to diversity trainings that imply someone is responsible for actions “committed in the past by other members of the same race, color, sex, or national origin.” The Act essentially broadens the Florida Civil Rights Act’s definition of discrimination to include making another person uncomfortable over historical, factual events that involve people’s race, nationality, or gender.

What does this mean for employers?

• Employers should review any workplace conduct training (e.g. harassment and discrimination prevention or diversity training) to ensure compliance as soon as the law is enacted. The risks and benefits of these trainings should be discussed with counsel.

• Florida employers that continue to offer these trainings should consult outside counsel and review their EEO policies and training materials to remove or rewrite materials that could be problematic under the new law in advance of the July 1, 2022 deadline.

• Employers should follow regulatory guidance as well as developments in other states carefully to see if similar laws are passed, as well as follow legal challenges that could result in the law ultimately being struck down.

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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.