The Stop WOKE Act may put a ‘strategic pause’ on DEI efforts

Employers have their eyes trained on a law passed last month by Florida legislators. The controversial Stop WOKE Act comes on the heels of more than a hundred bills placing similar targets on progressive teaching in public schools. But this act goes further, restricting diversity, equity and inclusion trainings in the workplace.

Plenty of employers outside of Florida are keeping abreast of the developments surrounding the Stop WOKE Act to monitor the larger trend. But some are watching the details to determine how it may impact them; many employers headquartered outside of the Sunshine State will be ensnared by the legislation, according to Cindy-Ann L. Thomas, a principal at Littler who co-chairs the firm’s EEO and diversity practice group. If companies have any operations or people in Florida, the law applies to them. And with so many workers mobilized by the recent surge in remote work, the potential for coverage is high.

The Stop WOKE Act has inspired reactions as wide-ranging as its scope of impact. Florida Governor Ron DeSantis hailed the legislation as a win for personal liberties, including the freedom from “oppressive ideologies” like critical race theory. Meanwhile, the act sparked outcry among DEI professionals like Tammy Hodo, a Florida-based consultant whose business was hurt by an earlier and now-defunct order against diversity trainings for federal contractors from President Donald Trump.

Like Trump’s order, the Stop WOKE Act will hamper diversity workplace trainings, per its design, Hodo predicted. “It will stifle any conversations surrounding DEI,” she said. “I believe organizations will use this as a crutch to not have much-needed conversations about inclusion.”

As DEI practitioners and employers brace for impact, they will need to consider the provisions of the act and plan accordingly. But legal challenges to the law will likely complicate these plans, Thomas pointed out, and employers will need to pay close attention to the developments in the coming months.

An overview of the act

On April 22, 2022, DeSantis signed the Stop the Wrongs to Our Kids and Employees Act into law. The act, which is set to take effect July 1, 2022, amends the Florida Civil Rights Act and the state’s education code.

The law restricts the content public and private employers with 15 or more employees can use in workplace trainings. Specifically, it prohibits employers from teaching eight concepts based on race, color, sex and national origin. The law bans employers from teaching, for example, that people of one race, color, sex or national origin are “morally superior” to those of other groups. It also says that employers may not discriminate against someone based on those characteristics to “achieve diversity, equity, or inclusion” and prohibits employers from suggesting that someone “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress” because of actions “committed in the past” by members sharing their characteristics.

The prohibitions target topics that many DEI professionals are featuring heavily in today’s workplace trainings, according to Thomas.

DeSantis admitted as much when he signed the act, though he spoke of the restrictions with an air of triumph, surrounded by middle and high school students at a charter school outside of Miami. 

“We believe an important component of freedom in the state of Florida is the freedom from having oppressive ideologies imposed upon you without your consent,” DeSantis said. “Whether it be in the classroom or in the workplace. And we decided to do something about it.”

The act allows employees subject to such trainings to file a complaint with the Florida Commission on Human Relations and file a lawsuit for damages of up to $100,000, Thomas said. 

While DeSantis and fellow proponents of the law celebrated its passing as a blow to critical race theory and other “pernicious ideologies,” Thomas and other sources who spoke to HR Dive expressed skepticism and frustration.

“It’s a solution designed for a problem that doesn’t exist,” said Thomas, noting that the sentiment was her personal opinion.

DEI consultant Hodo expressed a similar idea. “I think [proponents of the act] believe DEI training is about guilt and shame, and it’s not.” Hodo also questioned the law’s focus on blame. “I don’t know any true practitioner who does that,” she said. “DEI training is about empathy and understanding and education.”

Alternate routes to DEI training

If the law goes into effect as signed by DeSantis, it will undoubtedly impact workplace trainings on diversity, equity and inclusion. Thomas was quick to point out, however, that the law does not place an outright ban on such activities. 

“The law does not prohibit DEI training,” she said. “It just outlines so many restrictions in some of the topics that it’s going to demand employers to be far more cautious.”

The act may also affect employers’ Equal Employment Opportunity trainings, Thomas pointed out. EEO trainings aren’t labeled as DEI training, but they sometimes involve components or case studies that explore related topics.

Diane P. Perez, of counsel at Littler, agreed. She explained that in 1998 the U.S. Supreme Court handed down a pair of significant decisions regarding hostile work environments. The court decided that, because an employer can’t know or control everything that goes on in the workplace, it can defend itself against such claims if it shows it has worked to prevent and correct misconduct. The employer can establish this defense by instituting a policy and holding a yearly training. 

“But now that training is going to be harder to hold because somebody could be offended and that could open up liability for the company,” Perez said. “We can control the content of our trainings, but we can’t control how someone feels as the recipient of that training, which is the big problem.”

If the law goes enacted as written, employers will have to weigh the risk of conducting the training and potentially infringing on the Stop WOKE Act against the risk of not conducting it and losing the defense, Perez said.

For employers looking to avoid legal trouble but continue on with their trainings, the “first and most conservative approach” would be to complete all DEI training before the law takes effect, Thomas said. “That’s the most practical thing I can say. It can’t apply retroactively to anything before July 1.”

Outside of that strategy, Thomas recommended employers review the content of their existing programs and score it against the law’s restrictions. Examples in the trainings should be evaluated to ensure they bring balance and neutrality, and to ensure they don’t unfairly target one sex or one race as a perpetrator or recipient of misconduct. Thomas emphasized that employers should review the training with counsel.

The law may have created an opportunity to create new training modules, too. “Under the law they’ve cherry-picked dimensions,” Thomas said. The act is specific and consistent in its use of race, color, sex and national origin, but the Florida Civil Rights Act includes other dimensions like age and religion, Thomas pointed out. “So potentially create new modules so you can still have new conversations about bias, maybe disability bias or religious bias,” she said. “Those are not dimensions that the act is interested in at all.”

Time for a ‘strategic pause’?

Ultimately, the Stop WOKE Act will cause many employers to put what Thomas calls “a strategic pause” on DEI trainings until more legal guidance is available. The law is written in vague and broad terms, Thomas said, so employers will have to watch how the courts interpret it after it goes into effect. 

“Employers don’t want to be in the unenviable position of playing catch-up with the development,” she said. “​​The law is ambiguous, and it’s broad, and there are all sorts of clauses with double and quadruple negatives. It’s very frustrating for the layperson who is trying to roll out DEI programming in light of such ambiguity.”

By pausing DEI trainings, organizations can continue with their training — eventually — without becoming a test case. “Most companies cannot afford to be a test case,” Thomas said. “Regardless of how proud you are of your DEI values, no one wants to go to the mat for it, at least in terms of potential legal cost.”

A strategic pause may also offer some comfort to DEI practitioners struggling with DeSantis’ proposed regulations on their work. Thomas recounted client calls with DEI pros who were near tears over the blow to their profession. She encouraged practitioners to find a way to carry on their work without inviting legal challenges.

There will be some organizations that choose to halt their DEI work entirely, Hodo predicted. They may position their choice as defensive, but some will use the law as an excuse to end programs they weren’t truly invested in to begin with, Hodo predicted. 

“Let’s be real: A lot of DEI efforts weren’t a focus until the murder of George Floyd,” she said. “Companies that didn’t have efforts before that will go back to the status quo.”

Whether the law puts a pause on or an end to DEI work, it will stunt employee and organizational growth, Hodo and Thomas each concluded. 

“If this is allowed to stand in its current format, it places organizations at a disadvantage,” Thomas said. “It tries to outlaw discomfort. It makes psychological distress a form of discrimination. But you can’t experience growth without discomfort.”

Hodo agreed. The legislation will crush opportunities for conversations about the strength of diversity — conversations she said she believes are crucial to doing business. Hodo, who saw her DEI trainings canceled when Trump halted diversity training for federal contractors in 2020, questioned the pushback to DEI embodied by the Stop WOKE Act. In her mind, DEI training offers a similar kind of competency training employers offer and workers expect when cultural borders are crossed to do business.

The long road ahead

Predictions about the impact of the Stop WOKE Act are all tempered by one question: Will the legislation go into effect as passed?

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

Depending on the outcome of that hearing, Thomas said she expects appeals from the losing side. She predicts employers could be watching legal developments play out for up to two years, as appeals regarding the act wind their way to the Supreme Court’s docket. 

Even beyond legal sparring, employers will watch this law. “This is an act that many other states are watching vigilantly. Keep in mind that this is the first time besides Trump’s revoked order pertaining to federal contractors that we have a restriction on private employers in a state,” Thomas said.

Still, the idea of the law is nothing new. It expands on the efforts to dismantle similar discussions in schools. Schools have seen more than 100 bills aimed at restricting conversations around race and gender across the country. Tennessee currently has a statewide bill with similar provisions before the legislature.

“This is the beginning of a potential trend, and we’ll see how it winds its way through the judicial and appellate processes,” Thomas said. “Whatever happens on June 21, we will not see the last of it.”

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