On April 22, 2022, Florida Governor Ron DeSantis signed into law House Bill 7 (“HB 7”), which will become effective on July 1st of this year. HB 7 is described as “An act relating to individual freedom,” and amends several pre-existing Florida statutes. Most pertinently for employers in Florida, HB 7 amends the Florida Civil Rights Act, Fla. Stat. 760.10, by adding a new category of employer actions that constitute “unlawful employment practices.” Employers should keep in mind that the Florida Civil Rights Act provides a private right of action to individuals after the individuals have exhausted applicable administrative remedies.
The additional “unlawful employment practices” added to the Florida Civil Rights Act center around workplace training, and specifically training that is performed pursuant to what is commonly referred to as Diversity, Equity, and Inclusion (“DEI”). The new legislation limits what can be taught in such training programs and how it can be taught. HB 7 states that it is an unlawful employment practice to subject any individual, as condition of employment, to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe” certain enumerated “concepts.” The concepts are:
- Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Employers should carefully review the statutory language defining the prohibited concepts alongside their current DEI policies. Some of the distinctions between what is and what is not allowed are subtle and there may be a thin line between compliance and violation as to certain issues, such as how the amendments will relate to the concept of implicit bias. HB 7 does state that it is not unlawful to discuss the enumerated concepts as part of a course of training, as long as the training is “given in an objective manner without endorsement of the concepts.” It is still unclear how courts will treat this distinction between discussing the concepts in an objective manner versus discussing them in a way that endorses the concepts.
How the new law will play out in reality is yet to be seen. Litigation around the new law is inevitable, and in fact, the first lawsuit challenging the legislation has already been filed in the federal court of the Northern District of Florida. The lawsuit argues, among other things, that HB 7 violates the First Amendment of the U.S. Constitution and that it is so vague that it fails to put a reasonable person on notice of what is prohibited. As the law is implemented starting on July 1, 2022, employers should stay abreast of any litigation, carefully review their existing DEI policies for compliance.