Gov. Ron DeSantis is expected to soon sign legislation that will open a new front in how employers will need to think about workplace activities and set new state guidelines for what would constitute “unlawful employment practices.”
House Bill 7, titled “Individual Freedom,” was one of the most contentious pieces of legislation considered by lawmakers during the legislative session that ended in mid-March. While much of the attention focused on the restrictions that would be applied to the classroom, the bill could also alter Florida businesses’ labor practices — in particular restricting how employers present programs aimed at promoting diversity, equity and inclusion at work.
Ellen M. Leibovitch, an employment lawyer based in Boca Raton, says employers who offer training to employees on discrimination and harassment should be prepared to tailor the curriculum and presentation of their training programs.
“I think that employers are maybe not going to be doing these trainings anymore, or they’re going to do these trainings so neutral as to really not have the intended impact that they are supposed to have,” Leibovitch said.
The push comes as DeSantis and Florida Republicans take aim at “corporate wokeness” and publicly clash with The Walt Disney Company over the company’s opposition to a bill banning the teaching of gender-related issues to kids younger than third grade — and potentially higher grades.
How the law changes
In practice, the bill would amend the Florida Civil Rights Act and make it unlawful for employers to subject workers to “training, instruction, or any other required activity” that promotes or compels them to believe the following concepts:
That virtues such 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.
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’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 their race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
That members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
That a member of one race, color, sex or national origin cannot and should not attempt to treat others without respect to race, color, sex or national origin.
That an individual, by virtue of their race, color, sex, or national origin, bears responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions committed in the past by other members of the same race, color, sex, or national origin.
That 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.
Potential fallout for employers
If an employee believes their employer has violated any of those principles when delivering a training program, they can sue and pursue a claim for relief, including damages and attorneys’ fees.
The potential of lawsuits as an enforcement mechanism are likely to have a chilling effect on how employers convey certain diversity and inclusion goals in training sessions, according to some labor lawyers and consultants in the human resources field.
Supporters say the bill is meant to protect workers from being told they should feel bad about historical wrongs committed by people of their same race, gender or national origin.
The bill sponsor, Rep. Bryan Avila, R-Miami Springs, acknowledged part of the intent is to eliminate workplace programs that promote the concept of “white privilege” and broadly singled out training programs promoted by Walt Disney Co., Coca-Cola, American Express and Google, that he said would be in violation of the bill.
“Whether it is training on how to be less oppressive, or less white, all those things should not be occurring,” Avila said in a committee hearing in February. “All of those things are counterproductive to where we want to be as a nation, state, as a community.”
A solution for ‘a problem that doesn’t exist’
Penny Morey, a human resources executive and consultant with more than 30 years of experience in the field, said she has never encountered a training session curriculum that espouses the concepts the bill seeks to ban.
The problem, she argued, is that the bill could trigger lawsuits based on how someone perceives the delivery of a training program.
“This law is trying to fix a problem that doesn’t exist,” she said. “But please know that when I say bogus lawsuits exist, they do. People can find an attorney that works on contingency now and then, who will take something like this because it may make them some money on a contingency basis. They may get some publicly, they may get some attention — and that is going to be the chilling effect.”
Morey said she believes most companies and employers will likely “wait and see” how the bill is rolled out and what the reaction is among employees.
“I think the danger is that a lot of employers — and I don’t particularly blame them — will say ‘let’s step back away and take that out for now and let’s tackle it later when we know better about how this is going to be enforced,’ ” she said.
Another issue is that part of the reason why employers have training programs in the first place is to insulate themselves from liability, Leibovitch said. Training sessions can offer employers a layer of protection to say they tried to prevent wrongdoing in the workplace if an employee acts inappropriately. The company can still be liable, but those programs can show they tried to tell employers not to act in a certain way.
“If you don’t do the training then you really have no defense that you were trying to prevent,” said Sen. Tina Polsky, D-Boca Raton, a labor and employment attorney.
If an employer goes through with a training program that could put them at risk of a lawsuit, they will also need to take into consideration their insurance policies.
“The insurance that employers buy may not cover this yet because it is so new. So if they are sued, it could be that their insurance company who covers them for employment liability may say, ‘look this isn’t on your policy, so you’re on your own,’ ” Morey said.