Florida Governor Ron DeSantis signed a bill into law that prohibits employers from implementing discriminatory practices in their diversity training programs, effective July 1, 2022. The bill, known as the “Individual Freedom Act,” amends the Florida Civil Rights Act, Fla. St. 760.01, et seq., to expand the definition of discrimination and subjects employers to liability for violations.
Expanding the definition of “discrimination”
Specifically, the Individual Freedom Act amends Fla. St. § 760.10, to prohibit public employers and private employers with 15 or more employees from requiring any individual – as a condition of employment, membership, certification, licensing, credentialing, or passing an examination – to participate in training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the following concepts:
- 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 should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her 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.
However, these concepts may be included in training or instruction if they are addressed in an objective manner and without endorsement.
Enforcement and liability
If the Florida Attorney General has cause to believe that an employer has engaged in discrimination that violates the Individual Freedom Act and raises an issue of great public interest, the Florida Attorney General is authorized to file a civil action against the employer for injunctive relief, damages, and civil penalties of up to $10,000 per violation.
Additionally, individual employees who believe their employer has violated the Individual Freedom Act may file a charge with the Florida Commission on Human Relations, and thereafter pursue their own administrative or civil actions. Remedies available to aggrieved employees include injunctive relief, compensatory damages, back pay, and punitive damages up to $100,000. Employees must file their charge within 365 days of the alleged violation.
Takeaway for employers
Employers with Florida employees should carefully review their diversity and inclusion training materials and practices to evaluate their potential exposure to liability under this new law, and consult with counsel where appropriate. Employers should be particularly careful in making any discipline or termination decisions based on an employee’s objection to or refusal to participate in diversity training that may implicate this new law.
Although a lawsuit has been filed in the Northern District of Florida challenging the law, the act is still scheduled to take effect July 1, 2022.
Additional resources are below:
Senate Bill Analysis and Fiscal Impact Statement: https://www.flsenate.gov/Session/Bill/2022/148/Analyses/2022s00148.ed.PDF