What Stop WOKE and its inevitable copycats could mean for workplace law

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Laws like Florida’s Stop WOKE undermine the purpose of civil rights laws to reduce unlawful discrimination. The order issuing an injunction against the law by a federal judge contains an interesting discussion of civil rights and workplace law. While “Stop WOKE” types of laws may interfere with an employer’s ability to dictate personnel matters to some extent, they amount to little more than the unhelpful insertion of grievance politics into civil rights laws that protect all employees.

A federal Judge in Florida issued an injunction that struck down provisions of the Stop WOKE Act effecting anti-discrimination training that was pushed by Florida Governor, and GOP Presidential hopeful, Ron DeSantis.

Stop WOKE would have banned discussion of concepts like critical race theory and white privilege in schools and workplaces. Interestingly enough, business challenged Stop WOKE arguing that it interferes with their efforts to combat discrimination in the workplace.

Florida-based and employee-side employment law blogger Donna Ballman has written two scathing takedowns of Stop WOKE here and here. Part of Ballman’s criticism is that Stop WOKE is so poorly drafted that it does the opposite of what its drafters intended.

However, the expected demise of Florida’s Stop WOKE is far from the end of the discussion on the issue. I expect copy-cat Stop WOKE legislation in other states and maybe even in Congress next year. Someone may even have the savvy to draft a Stop WOKE 2.0 that does what the original Stop WOKE intended.

So how will Stop WOKE type laws impact workplace law if and when they are enacted?

Anti-discrimination training and civil rights law

Left out of the discussion about Stop WOKE is how anti-discrimination training is part of civil rights laws. It’s easy to forget about this because so much writing on civil rights laws is authored by lawyers who litigate discrimination cases. However, civil rights acts also seek to eliminate discrimination through education. That is part of the job of the EEOC and parallel state and local civil rights commissions.

But to some extent education is outsourced to employers. The law gives employers reasons to conduct anti-discrimination training.  Evidence of anti-discrimination training can be used as a defense against punitive damages in discrimination cases.

Anti-discrimination training has been a long-time part of workplaces. But efforts to eliminate discrimination have taken on new prominence in the wake of the George Floyd protests. Efforts at eliminating discrimination have also shifted from trying to avoid liability into more proactive diversity, equity and inclusion (DEI) initiatives, discussions of unconscious bias and discussions about “white privilege.”

White privilege is the idea that white people have certain unearned benefits because of their skin color due to long-standing discrimination against people of color. The concept of white privilege seems to gall some conservatives and it seems like discussions of that topic are the target of legislation like Stop WOKE.

The First Amendment, workplace law and STOP Woke

The State of Florida argued for against Stop WOKE on 1st Amendment grounds because employees must attend these training so they are a captive audience.

The Federal District Court judge turned that First Amendment argument on its head. The court agreed that Stop WOKE actually violated the 1st Amendment rights of employers by prohibiting them talking about unconscious bias and white privilege based on viewpoint discrimination which is strongly limited by the 1st Amendment

The Court went further to argue that making discussions of unconscious bias and white privilege unlawful also undermined how the 1st Amendment is applied to anti-discrimination laws. To some extent, courts have incorporated the criticism that anti-discrimination laws could violate the 1st Amendment in general by creating a very employer- friendly standard for harassment that attempts to protect the 1st Amendment rights of those who would be accused of discrimination prohibited by civil rights laws. Courts have gone so far to say that civil rights codes aren’t civility codes. In fact federal circuit courts almost take a certain relish in describing boorish and creepy behavior that doesn’t constitute harassment for purposes of Title VII. In the Sixth Circuit’s version of this parade of horribles, they point out a manager who grabbed an employee’s buttocks and stated “Your ass belongs to me” did not create enough of a hostile environment for that employee to bring a harassment claim under Title VII.

In contrast, Stop WOKE would prohibit any discussion of white privilege, unconscious bias, etc no matter how it is presented. In essence such discussion is per se unlawful. If that standard applied to harassment on other classes protected by civil rights laws, employees would have a much easier time winning harassment cases.

The court also pointed out that the captive audience doctrine has limited application outside of laws regulating union organizing. Federal courts have interpreted the captive audience doctrine in a way helps employers in efforts to stop union organizing. Some labor advocates point out that DEI efforts often include so-called “affinity groups” of certain categories of workers and that those affinity groups are often sold as ways for employers to avoid unions.

I suppose you could take contrarian-left view and argue Stop WOKE is pro-worker in that it would curtail certain anti-union activities and would it make it easier for employees to sue their employer. That would be really short-sighted even if you completely discount legitimate concerns over diversity, equity and inclusion. Conservatives are marching in lock-step with some Democrats in gutting employment protections for the sake of the “gig economy” and big tech. Legislation about Stop WOKE is about inserting culture war grievance into civil rights laws that protect everyone from discrimination in the workplace. They have little or nothing to to do with improving workplace conditions for the bulk of workers.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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