In the waning days of the 2022 legislative session, the Florida Legislature passed Committee Substitute for House Bill 7 (CS/HB 7), which would limit workplace training and instructional materials and practices bearing on race and sex relations in Florida. The bill is entitled "Individual Freedom," but is also known as the "Stop WOKE Act." Gov. Ron DeSantis is expected to sign the bill. A legal challenge may follow, but the timing of any decision is uncertain.
Overview of the Bill
CS/HB 7 would modify state employment and public K-20 education nondiscrimination law so as to expand what constitutes discrimination based on race, color, sex or national origin. The employment discrimination trigger would be subjecting any individual, "as a condition of employment, membership, certification, licensing, credentialing or passing an examination," to the speech or conduct at issue. Membership is implicated but not places of public accommodation.
The speech or conduct regulated is "training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels" the individual to believe certain concepts such as that an individual, by virtue of race, color, sex or national origin:
- is inherently racist, sexist or oppressive, whether consciously or unconsciously
- 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
- should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion
- 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
CS/HB 7 applies the same limitations to espousing, promoting, advancing, inculcating or compelling the individual to believe these 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'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
- 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
CS/HB 7 contains a carve-out in the employment context for discussion of the concepts "as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts." In the K-12 public education context, instructional personnel may facilitate discussions, in an age-appropriate manner, how the freedoms of persons have been infringed by sexism, slavery, racial oppression, racial segregation and racial discrimination, but "instruction and curriculum may not be used to indoctrinate or persuade students to a particular point of view... ."
Enforcement and Relief
The unlawful employment and educational practices provisions would be enforced using the already existing enforcement infrastructure that is part of, respectively, the Florida Civil Rights Act (FCRA) and Florida Educational Equity Act. A person aggrieved by a violation of CS/HB 7 could bring a claim for relief in court or request an administrative hearing. Under the FCRA, a private litigant must first file a complaint with the Florida Commission on Human Relations (FCHR) within 365 days of the alleged unlawful employment practice. Florida's Attorney General, the FCHR or FCHR commissioner may also file a complaint.
Just as in other employment discrimination charges with the state agency, the FCHR has 180 days to determine whether there is reasonable cause to believe that a discriminatory practice has occurred. Even if the FCHR does not reach this determination, the complainant may file suit within one year of FCHR notice. A court may award injunctive relief prohibiting the discriminatory practice, back pay (up to two years), compensatory damages (including for mental anguish, loss of dignity and punitive damages up to $100,000), and reasonable attorney's fees and costs. A finding that a person employed by the state has violated discrimination law is grounds for that person's discharge.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.