South Florida Sun-Sentinel (Sunday)
A legal minefield for employers
Florida’s ‘Stop Woke Act’ leaves diversity training programs on shaky ground
Come July 1, Florida employers who mandate diversity training programs to their workers would be well advised 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 Gov. Ron DeSantis, restricts how programs aimed at promoting diversity in the workplace can be presented to employees. The idea is to protect workers as well as students in schools from language that might make them feel “uncomfortable” by references to past acts of bias and discrimination around the country.
Among other things, the bill makes it unlawful to “subject a person, as a condition of employment … to training, instruction, or any other required activity” that compels such individual to believe: Members of one race, color, sex, or national origin are morally superior to members of another
That an individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
Than 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
That an individual, by virtue of his or her 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, 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 … because of actions … committed in the past by other members of the same race, color, sex, or national origin.
While introducing the idea for the bill late last year, DeSantis invoked the “woke” term, “Wrongs to Our Kids and Employees,” as its title. He argues that whites are suffering from presumptions served up in schools and workplaces that imply they are innately biased and racist against Blacks and other minorities.
“In Florida, we are taking a stand against the state-sanctioned racism that is critical race theory,” DeSantis said. “We won’t allow Florida tax dollars to be spent teaching kids to hate our country or to hate each other.”
But labor and employment lawyers
and other advisers in the human resources field say the law has created a legal minefield for private and public sector employers. If employees do end up feeling discomfited by the concepts and statements conveyed during 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 vaccine mandates, employers appear to be in a wait-andsee period with the new anti-woke act.
“In the past year, City of Fort Lauderdale leadership staff participated in diversity and inclusion training to provide awareness and strategies to foster an inclusive environment for all employees,” said city manager Chris Lagerbloom in an emailed statement.
“The city regularly offers optional diversity and inclusion trainings to staff as well,” he said. “Our human resources team will be reviewing the trainings in light of the pending legislation.”
An end to diversity training in Florida?: Some labor and employment lawyers who represents private sector employers believe the 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, a labor and employment and business litigation lawyer 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 in the state of Florida.”
Since the legislation is “hot off the press,” Samuels said, “companies are all going to do their own analysis of this.”
The key questions: whether the training programs will need to be drastically modified, or scrapped altogether.
A caution light for employers: For years, employers have created their own programs or purchased them from training companies that specialize in the field as a means of conveying the importance to their employees of diversity, equal opportunity and fair play in the workplace.
But the insertion of the “unconscious bias” concept into the teachings are relatively new, having been “advocated in the last few years,” said Meredith Plummer, a labor and employment lawyer at the Gunster law firm in West Palm Beach.
“It’s not being used by a lot of people,” she said. But those employers that do should ensure 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 said so there is not a ‘he said, she said’ situation happening,” Plummer said.
For employers, here’s where the minefield begins: The act bars employers of 15 or more people from subjecting workers to training that leads them to believe in certain defined concepts, or makes them “uncomfortable” as a result of the topics being presented in the discussion.
“The bill is not saying the companies cannot talk about the ideas of unconscious bias,” Plummer said. “Employers are going to have to be very careful when they are discussing those topics.”
Law opponents say the act could unleash a flood of lawsuits from employees who are upset about diversity training and could hurt Florida’s ability to recruit and keep businesses.
And there is also fertile ground to bring suits alleging free speech violations under the First Amendment, lawyers say.
“The truth is there is plenty of grist for both sides in a First Amendment challenge to this law,” said David Miller of Bryant Miller Olive, a labor and employment lawyer who represents public sector employers.
“I read one commentary on this law by someone who said the Florida Civil Rights Act and the federal civil rights act already offer a legal way for someone offended by this sort of thing to bring a lawsuit,” he said.
Corporations under
On his official state fire: website, the governor takes aim at three major U.S. corporations that he said promote critical race theory and practice “woke” corporate training:
“Raytheon, the nation’s second-largest defense contractor, “launched a Critical Race Theory program that encourages white employees to confront their ‘privilege,’ reject the principle of ‘equality,’ and ‘defund the police.’ ”
“Bank of America teaches that the United States is a system of ‘white supremacy,’ encourages employees to become ‘woke at work,’ and teaches that white toddlers ‘develop racial biases by ages 3-5.’ ”
“Google employee program claims that America is a ‘system of white supremacy’ and that all Americans are ‘raised to be racist.’ ”
DeSantis has also gone to war with the Walt Disney Co., which opposed a related bill officially titled Parental Rights in Education but known by many as the “don’t say gay” bill. The bill bars classroom instruction on “sexual orientation or gender identity” for grades kindergarten through three or in a manner that is not “age appropriate” in all grades.
Disney has said the bill “should never have passed and should have never been signed into law.” The company, which is Central Florida’s largest employer, vowed to work to repeal it or overturn it in the courts.
But now, DeSantis is questioning special treatment that Disney has received over the years that have allowed it to issue tax-free bonds, regulate land use, and provide fire, police and other essential public services.
This week, he mentioned an exemption the company got in legislation that excluded companies that operate theme parks from a bill that sought to stop social media outlets from de-platforming political candidates.
“At the end of the day, I don’t believe in special treatment for any corporation,” he said Friday.