Many companies have invested in and prioritized diversity, equity, inclusion, and accessibility (DEIA) initiatives over the past several years. And for good reason: DEIA initiatives have been proven to improve employee recruitment, retention, and morale, and to help mitigate risks associated with potential disparate treatment and discrimination claims by employees.
Employers looking to maintain DEIA initiatives need to be aware of state laws on the issue, which are becoming more common. Closely examining these developments can help employers navigate their own DEIA efforts without exposing them to legal risks, and without having to compromise their commitments to DEIA.
Relevant Legislation
Following years of political debates on DEIA efforts, some states and other political bodies have pursued legislative efforts that impact certain employer DEIA initiatives. One of the most prominent examples is Florida’s “Stop Wrongs to Our Kids and Employees (W.O.K.E) Act,” signed into law in 2022. Among other things, the Stop WOKE Act prohibits employers with 15 or more employees from requiring employees to attend training or programming that “espouses, promotes, advances, inculcates, or compels” an employee to believe that:
While the Florida law does not explicitly prohibit employer DEIA efforts, it requires that if employers choose to discuss any of these concepts, they must do so in “an objective manner without endorsement of the concepts.” Employees who believe their employer has violated this law can file a complaint with the Florida Commission on Human Relations and can ultimately pursue administrative or civil action, and remedies include injunctive relief, back pay, compensatory damages, and punitive damages up to $100,000.00.
Other states are also pursuing similar legislation. Texas House Bill 1006 filed in December 2022 would prohibit higher education institutions from funding or supporting diversity, equity, and inclusion offices, and would prohibit any diversity-related initiatives “beyond what [are] necessary to uphold the equal protection of the laws under the Fourteenth Amendment.” Texas Senate Bill 17 filed on March 10, 2023, would not only prohibit public higher education institutions from having DEIA offices or requiring DEI statements in admissions or hiring but would also prevent universities from hiring first-time violators until the end of the academic year in which the violation occurred. “Repeat violators” would be terminated and could not be eligible for re-hire for five years after their termination.
Relatedly, Texas Governor Greg Abbott released a memo in February 2023 claiming that DEIA initiatives illegally discriminate against “certain demographics” and should be prohibited. Think tanks like the Manhattan Institute have proposed a roadmap of model state legislation aimed at public institutions with four main proposals, including to: “(1) abolish DEI bureaucracies; (2) end mandatory diversity training; (3) curtail political coercion; [and] (4) end identity-based preferences.”
Legal Analysis
As noted above, these legislative efforts aimed at DEIA have been significantly politicized by both the right and left. However, when we read the actual text of the laws, employers will note that they do not materially differ from what is already required under Title VII of the Civil Rights Act of 1964. For example, the Stop WOKE Act provides that employers cannot require employees to attend programming that teaches any one race is morally superior, that anyone should be discriminated against to achieve DEI objectives, or that certain individuals should be discriminated against or receive adverse treatment because of actions committed in the past by others with the same characteristics. It is unlikely that much, if any, of the workplace DEIA training currently taking place in companies espouses these theories or otherwise runs afoul of legislation like the Stop WOKE Act.
Indeed, like Title VII, at its core, the Stop WOKE Act simply requires that individuals be entitled to work in an environment that is free from discrimination and hostility based on protected characteristics. It is true that the Act may effectively restrict employers from requiring DEIA programming that discusses the origins of systemic racism and privilege. But this kind of required workplace training could have previously served as the basis for a claim of discrimination under Title VII – though now such claims may have a stronger foothold because of the Stop WOKE Act and similar proposed laws.
Best Practices for Employers
Employers should not fall into a trap of believing that all DEIA trainings are now unlawful; that companies should conduct fewer of these trainings; or that the new laws somehow handcuff companies from conducting DEIA training, education, or offering DEIA programming. Indeed, there are still ways for employers to engage in training and initiatives in the DEIA space without creating unnecessary legal risks. We recommend the following:
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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