Florida's "Stop WOKE Act" Will Impact DEI Trainings

Author: David B. Weisenfeld

March 25, 2022

A new Florida measure would ban workplace trainings from teaching that anyone is "inherently racist, sexist or oppressive, whether consciously or unconsciously," or that anyone is privileged or oppressed based on their race, color, sex or national origin.

The Stop Wrongs Against Our Kids and Employees Act (dubbed the Stop WOKE Act) aims to limit how schools and employers handle teaching about systemic racism and white privilege. The Florida legislature passed the Act earlier this month, and it will become law if Gov. Ron DeSantis signs it, as expected.

"We must protect Florida workers against the hostile work environment that is created when large corporations force their employees to endure CRT-inspired (critical race theory) 'training' and indoctrination," said Gov. DeSantis upon the measure's introduction.

The Stop WOKE Act makes it an unlawful employment practice to subject any individual as a condition of employment to training, instruction or any other required activity that promotes or compels them to believe that any of the following concepts constitute discrimination based on race, color, sex or national origin:

• Members of one race, color, sex or national origin are morally superior to another race, color, sex or national origin.
• Individuals by virtue of their race, color, sex or national origin bear 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.
• Individuals by virtue of their race, color, sex or national origin should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion.
• Individuals must feel guilt, anguish or other forms of psychological distress because of actions in which the individual played no part that were committed in the past by other members of the same race, color, sex or national origin.
• Such virtues as a 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.

"Some employers will avoid DEI training because of the risks that may exist under the Florida Stop WOKE Act." cautioned employment attorney Jonathan Segal, managing principal of the Duane Morris Institute, which conducts training for HR professionals.

The Act states, though, that it should not be construed to ban the discussion of these concepts - provided such training or instruction is given in an objective manner without endorsement of the concepts.

"Nothing in the Act should prevent employers from hitting hard on the importance of taking steps to disrupt bias and increase inclusion because there are risks in not providing DEI training, both legal and practical," noted Segal. "For example, unconscious bias hurts not only its objects but also employers who may lose the benefit of their talent with record-low unemployment."

Segal said this measure restricts the free speech of employers, and he would expect a First Amendment constitutional challenge after the bill is signed. "While I am troubled by the degree to which some workplaces have groupspeak and think this is a serious problem, how ironic that an 'anti-woke' law is well… sort of woke in its chilling of speech."