This article was originally published in Husch Blackwell’s News and Insights blog and is published here with permission.

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.

Melissa Caulum Williams headshot Melissa Caulum Williams, U.W. 2007, is senior counsel with Husch Blackwell in Madison, where she advises clients on labor and employment matters.

Erik Eisenmann headshot Erik Eisenmann, George Washington 2007, is a partner in the Milwaukee office of Husch Blackwell, where he counsels employers of all sizes.

Michael Matta headshot Michael Matta, University of California-Los Angeles School of Law, is an associate with Husch Blackwell in Los Angeles, where practices in labor and employment matters in federal and state courts.

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:

  • 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;

  • 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; or

  • 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.

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:

  • Read and analyze the text of each new law carefully and understand what it actually requires of employers. Compare it to the training materials, policies, and procedures the company offers and requires of employees to determine if anything may run afoul the law.

  • Develop a clear plan that articulates which DEIA initiatives the company seeks to accomplish and why those initiatives are important. In so doing, the company can emphasize its commitment to combating systemic and institutional inequalities in general terms and can explain that commitment ultimately serves other purposes, better business-oriented decision making, increased workplace morale, and increased employee retention – all objective goals.

  • Tailor DEIA communications in a manner that creates a space for proponents of DEIA initiatives and those who have concerns about the initiatives to foster healthy and transparent communication about the company’s goals.

  • Conduct DEIA trainings led by properly qualified DEIA instructors who have the ability effectively communicate DEIA initiatives—i.e., ensuring that initiatives focus on addressing systemic and institutional inequalities in an objective manner.

  • Within required training materials, consider pronouncing respect and inclusion for all employees, and creating opportunities for all, as the company’s goal. Also consider stating that when employees value, respect, and learn from different backgrounds and experiences, it benefits company culture and outcomes.

  • Avoid required training that blames groups of people for the causes of racism and sexism (or if the company chooses to do this understand the legal and organizational risks). Focus on the importance and benefits of a robust DEIA program for the workforce as a whole.