Florida's 'Stop WOKE Act' May Put a 'Strategic Pause' on DEI Training

A law passed by Florida lawmakers last month is drawing close attention from employers. The controversial Stop WOKE Act follows more than 100 similar bills targeting progressive teaching in public schools across the country, but it goes further by restricting diversity, equity, and inclusion (DEI) training in the workplace.

Many employers outside Florida are also watching the progress of the Stop WOKE Act to observe the trend. But some are studying the details to determine how the bill might affect them; according to Cindy-Ann L. Thomas, a principal at Littler and co-chair of the firm's EEO and Diversity practice group, many employers headquartered outside the Sunshine State will be bound by the bill. If a company has any operations or employees in Florida, the law applies to them. With the increased employee mobility brought on by the recent surge in remote work, the likelihood of coverage is high.

The reaction to the Stop WOKE Act is as broad as its reach. Florida Gov. Ron DeSantis praised the legislation as a victory for individual freedom, including the freedom from "oppressive ideologies" such as critical race theory. Meanwhile, the bill has sparked strong protests from DEI professionals, such as Florida consultant Tammy Hodo, whose business was previously damaged by a now-defunct executive order from President Donald Trump targeting diversity training for federal contractors.

Hodo predicts that, like Trump's order, the Stop WOKE Act will hinder workplace diversity training as designed. "It will kill any conversation around DEI," she said. "I think organizations will use this as an excuse to avoid having the necessary conversations about inclusion."

As DEI practitioners and employers prepare for the impact, they need to consider the bill's provisions and make corresponding plans. But Thomas noted that legal challenges to the law could complicate those plans, and employers need to watch developments closely in the coming months.

Bill overview

On April 22, 2022, DeSantis signed the Stop WOKE Act. The bill, which takes effect July 1, 2022, amends the Florida Civil Rights Act and the state's education code.

The law restricts the content that public and private employers with more than 15 employees can use in workplace training. Specifically, it prohibits employers from teaching eight concepts based on race, color, sex, and national origin. For example, the law prohibits employers from teaching that individuals of any particular race, color, sex, or national origin are "morally superior" to other groups. It also states that employers may not discriminate on these bases to "achieve diversity, equity, or inclusion," and prohibits employers from suggesting that someone "bears personal responsibility and must feel guilt, anguish, or other forms of psychological distress" because of actions committed in the past by members of the same characteristic.

Thomas said these prohibitions target topics that many DEI professionals focus on in current workplace training.

DeSantis acknowledged this when signing the bill, although he spoke triumphantly about the restrictions while surrounded by middle and high school students at a charter school outside Miami.

"We believe that an important part of freedom in Florida is the freedom from having oppressive ideologies imposed on you without your consent," DeSantis said. "Whether it's in the classroom or in the workplace. We decided to take action."

Thomas said the bill allows employees who receive such training to file complaints with the Florida Commission on Human Relations and file lawsuits seeking damages of up to $100,000.

While DeSantis and supporters of the law celebrated its passage as a blow against critical race theory and other "harmful ideologies," Thomas and other sources interviewed by HR Dive expressed skepticism and frustration.

"This is a solution to a problem that doesn't exist," Thomas said, noting it was her personal opinion.

DEI consultant Hodo echoed similar views. "I think (supporters of the bill) think DEI training is about guilt and shame, but it's not." Hodo also questioned the law's focus on blame. "I don't know any real practitioner who does that," she said. "DEI training is about empathy, understanding, and education."

Alternative paths for DEI training

If the law takes effect in the form DeSantis signed, it will undoubtedly impact workplace training on diversity, equity, and inclusion. However, Thomas was quick to point out that the law does not completely prohibit such activities.

"The law does not prohibit DEI training," she said. "It just imposes many restrictions on certain topics, which will require employers to be more careful."

Thomas also noted that the bill could affect employers' equal employment opportunity (EEO) training. EEO training, while not labeled as DEI training, sometimes includes components or case studies that explore related topics.

Diane P. Perez, a consultant at Littler, agreed. She explained that in 1998, the U.S. Supreme Court issued two important rulings on hostile work environments. The Court ruled that because employers cannot know or control everything that happens in the workplace, if an employer shows it has made efforts to prevent and correct misconduct, it can use that as a defense. Employers can establish this defense by having policies and conducting annual training.

"But now conducting training will be more difficult because someone might feel offended, which could bring liability to the company," Perez said. "We can control the content of the training, but we cannot control the feelings of those being trained, and that's a big problem."

Perez said that if the law takes effect as written, employers will have to weigh the risk of conducting training and potentially violating the Stop WOKE Act against the risk of not conducting training and losing the defense.

For employers who want to avoid legal trouble but continue training, Thomas said "the first and most conservative approach" is to complete all DEI training before the law takes effect. "That's the most practical thing I can say. It cannot apply retroactively to anything before July 1."

In addition to that strategy, Thomas advised employers to review the content of their existing programs and score them against the law's restrictions. Examples in training should be evaluated to ensure they bring balance and neutrality, and to ensure they do not unfairly portray one gender or race as perpetrators or victims of misconduct. Thomas emphasized that employers should review training under the guidance of legal counsel.

The law may also create opportunities to create new training modules. "Under the law, they picked dimensions," Thomas said. The bill is specific and consistent in using race, color, sex, and national origin, but the Florida Civil Rights Act also includes other dimensions such as age and religion, Thomas noted. "So, new modules could be created so that you can still have new conversations about bias, such as disability bias or religious bias," she said. "These dimensions are not the focus of the bill at all."

A moment of 'strategic pause'?

Ultimately, the Stop WOKE Act will lead many employers to take what Thomas calls a "strategic pause" on DEI training until more legal guidance is obtained. Thomas said the law is vague and broad in its wording, so employers must pay attention to how courts interpret it after it takes effect.

"Employers don't want to be at a disadvantage in chasing developments," she said. "The law is vague and broad, with various double and quadruple negative clauses. For the average person trying to roll out DEI programs under this ambiguity, it's very frustrating."

By pausing DEI training, organizations can continue their training—eventually—without becoming test cases. "Most companies can't afford to be test cases," Thomas said. "No matter how proud you are of DEI values, no one wants to go to court over this, at least in terms of potential legal costs."

The strategic pause may also provide some comfort to DEI practitioners struggling with the rules proposed by DeSantis. Thomas recounted phone calls with DEI professionals who were nearly in tears over the blow to their careers. She encouraged practitioners to find a way to continue their work without inviting legal challenges.

Hodo predicts that some organizations will choose to stop DEI work entirely. They may position the choice as defensive, but some will use the law as an excuse to end programs they were not truly committed to in the first place, Hodo predicted.

"Honestly, a lot of DEI efforts were not a focus before the killing of George Floyd," she said. "Companies that didn't make efforts before will go back to the status quo."

Whether the law pauses or ends DEI work, it will hinder the growth of employees and organizations, Hodo and Thomas both concluded.

"If this is allowed to exist in its current form, it will put organizations at a disadvantage," Thomas said. "It tries to prohibit discomfort. It makes psychological distress a form of discrimination. But without discomfort, you cannot achieve growth."

Hodo agreed. The legislation will stifle opportunities for conversations about the benefits of diversity—conversations she believes are essential to doing business. Hodo, who saw her DEI training canceled in 2020 when Trump suspended diversity training for federal contractors, questioned the resistance to DEI embodied in the Stop WOKE Act. In her view, DEI training provides a kind of competency training that employers offer and employees expect when doing business across cultural boundaries.

A long road ahead

Predictions about the impact of the Stop WOKE Act are all tempered by one question: Will the legislation take effect in the form it was passed?

Minutes after DeSantis signed the bill, Hodo and four other plaintiffs filed a lawsuit seeking a preliminary injunction against the law. The lawsuit claims the legislation violates the free speech rights of Florida employers and educators. The plaintiffs requested a preliminary injunction hearing, which was set for June 21—nine days before the law takes effect.

Thomas said that depending on the outcome of that hearing, she expects the losing party to appeal. She predicted that as appeals of the bill make their way to the Supreme Court's docket, employers could see legal developments lasting up to two years.

Even beyond the legal arguments, employers will be watching this law. "This is a bill that many other states are closely watching. Remember, apart from Trump's revoked order targeting federal contractors, this is the first time a state has imposed restrictions on private employers," Thomas said.

Still, the idea behind the law is not new. It extends efforts to dismantle similar discussions in schools. Schools across the country have already seen more than 100 bills aimed at restricting conversations around race and sex. Tennessee currently has a statewide bill with similar provisions moving through its legislature.

"This is the beginning of a potential trend, and we will see how it develops through the judicial and appellate process," Thomas said. "Whatever happens on June 21, we won't see the end of it."