How the Stop WOKE Act Will Impact Florida's Employers

On Wednesday, August 17, Florida TaxWatch and the Gunster law firm co-hosted a webinar designed to help Florida businesses better understand and comply with the requirements of the Individual Freedom Act (also known as the “Stop WOKE” Act) passed by the 2022 Florida Legislature. Florida TaxWatch is grateful to Holly Goodman and Joseph Santoro of the Gunster law firm for sharing their insights on the effects of this controversial legislation on Florida businesses. Florida TaxWatch is pleased to present the following summary of the webinar.

What is the Individual Freedom Act (aka the Stop WOKE Act)?

The Individual Freedom Act (HB 7) expands the current cause of action provisions in the Florida Civil Rights Act to allow employees to sue employers if certain specified concepts are included in mandatory (emphasis added) training or instruction.

Who is impacted?

The Act is designed to protect employees working in Florida from discrimination. Employers with 15 or more employees who are employed for 20 or more calendar weeks are subject to the provisions of the Act.

What activities are unlawful?

The Act outlaws subjecting individuals “as a condition of employment” to activities (e.g., training, orientation, etc.) that “espouse, promote, advance, inculcate, or compel” individuals to believe the following concepts:

• That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
• 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.
• That 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 members of one race, color, sex, or national origin cannot and should not attempt to treat others withoutrespect to race, color, sex, or national origin.
• That 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.
• That an individual, by virtue for his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
• That 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.
• That 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.

How do these activities relate to business operations?

Materials and activities related to diversity initiatives --- such as company handbooks and policies, new employee orientations, and Diversity, Equity, and Inclusivity (DEI) training --- may need to be adapted to ensure compliance with the Act. For businesses that have employees in multiple states, employers should ensure the activities affecting Florida employees are still within the bounds of Florida law.

How will violations to the act be enforced and remedied?

Florida employees can file claims and seek remedy through injunctions, damages, and attorney fees. The government enforces the law when employees go through an administrative process with the Florida Commission on Human Relations.

How can employers mitigate risks?

Employers should continue pursuing diversity initiatives; however, certain steps should be taken to remain within the bounds of the Act and to protect employers against unfounded claims:

• When in doubt, employers should seek counsel from a qualified labor and employment attorney;
• Materials or activities relating to DEI initiatives should be reviewed and, if needed, updated to ensure compliance with the Act;
• When preparing DEI initiatives, consider using DEI trainers who tailor their content to be in compliance with Florida law or using pre-recorded presentations;
• If an outside entity is used to provide trainings, including DEI trainers, employers should review the training materials in advance;
• When mandatory trainings are conducted, employers should collect evidence that they followed the law by saving slides, recording presentations, and noting potential witnesses;
• If employers are offering optional activities that may touch upon the topics listed within the Act, the employers should maintain written evidence that the training was optional and that employees were aware of such;
• Consider enrolling in Employers Liability Insurance (ELI); and
• If an employee brings a complaint against an employer, the employer should, at a minimum: (1) seek qualified legal counsel; (2) alert their ELI carrier, if applicable; (3) conduct an investigation to see if the claim has merit; (4) document findings from investigations; (5) take appropriate remedial action; and (6) document the remedial action taken.

In closing, it is important that Florida employers consider how the Act influences their business practices. The Act contains several vague terms, such as “promotes” and “advances” that are not defined and that are likely to be defined as a result of future legal action. In the meantime, common sense should be the order of the day.

NOTE: On August 18, a federal judge granted a temporary injunction blocking enforcement of the Act on the grounds the Act violates the First Amendment. There is every reason to believe the State will appeal this decision. Stay tuned…

If you have suggestions for topics we should highlight in future webinars, contact Tony Carvajal at TCarvajal@FloridaTaxWatch.org.