In 1977, the Florida Legislature enacted section 760.10 Unlawful Employment Practices. There have been revisions in the interim, but a major revision was passed in 2022, referred to by the legislative action, "House Bill (HB) 7." This relocated two paragraphs of the existing bill, and inserted a new paragraph (8):
"Subsections (8) through (10) of section 760.10, 61 Florida Statutes, are renumbered as subsections (9) through 62 (11), respectively, and a new subsection (8) is added."
The new paragraph 8 is directed at actions toward "any individual," and precludes various behavior, defining that the words or actions in the subparagraphs to paragraph 8 "constitute(s) discrimination based on race, color, sex, or national origin." There are eight separate subparagraphs of criteria or categories, and "subjecting any individual" to the actions described in any of them is "discrimination" and unlawful if it is done
"as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe"
The foci of this statute are thus inextricably and broadly intertwined with the employment process in Florida. That "employment" itself is explicit supports this. However, it is deeper. The impact will also be intertwined in the education process, licensing, and credentialing. the broadest "catch all," incorporates "any other required activity." Thus the spectrum of employment processes and paths are implicated by these prohibitions on discrimination.
In the event of a work accident, there may be litigation regarding statutory benefits. That is a workers' compensation reality with which most are familiar. However, it is not uncommon for such litigation to also include broader workplace issues including discharge from employment, wage and hour disputes highlighted by average weekly wave discovery, and discrimination. This statutory change is therefore an important topic for discussion as regards the workplace relationship broadly.
The subparagraphs of the new paragraph (8) delineate the following as discrimination action that "subjects any individual . . . to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of" the particular subparagraphs (numbered paragraphs are direct quotes). On other words, the law forbids teaching, training, or directing that:
1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.3. 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.4. 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.5. 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.6. 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.7. 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.8. 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.
In the press release regarding the signing of the bill, Governor DeSantis noted that this law "give(s) businesses, employees, children and families tools to stand up against discrimination and woke indoctrination." The release also noted that HB 7 "defines individual freedoms based on the fundamental truth that all individuals are equal before the law and have inalienable rights." That phrase is reminiscent of the Declaration of Independence written almost 250 years prior:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Inalienable and unalienable are essentially synonyms meaning "that which cannot be taken away," according to USHistory.org.
America's history, both before and after that declaration, has fallen well short of the aspiration and vision of that sentence. There have been acts of discrimination carried out, from slavery to Jim Crow, and beyond. Discrimination has at times been part of the very fabric of America. There has been recognition of that in the highest echelons of our legal system, perhaps most notably in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)("a Nation confronting a legacy of slavery and racial discrimination"). The concept of affirmative action in America is largely rooted in the analysis of this plurality opinion.
The Constitution Center characterizes that the "fractured Court in Bakke came to a mixed decision on the issue of racial preferences." The plaintiff in the case, Allan Bakke, had sought admission to medical school and was rejected. He learned of a school process that "designate(d) 16 of the 100 spots in each class for minority students." Mr. Bakke contended that this action, this discrimination, violated the law, specifically the Civil Rights Act of 1964, which "outlawed discrimination on the basis of race." A broad proscription on discrimination was being used to justify discrimination aimed at remediation of the impacts or effects of historical process or procedure.
Mr. Bakke was successful in the suit, and the California Supreme "ordered Bakke’s admission." The review by the "fractured" United States Supreme Court affirmed the order to admit Mr. Bakke, but concluded that discrimination based on race is not entirely illegal under the Civil Rights Act. It did strike down the quota process ("16 of the 100 spots"). However, four justices also concluded that it may be appropriate to consider race, that is to employ "a program that considered racial background as one of many holistic factors in admissions decision(s)." Mr. Justice Brennan's opinion stated it thus:
"The Court today . . . affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all."
That is, to discriminate based on race in specific, defined, and remedial methodologies. Affirmative action has persisted in higher education, and American workplaces, for almost 50 years since. The future of that remains to be seen, and a future post will address the interesting challenges with which the Court is expected to grapple in its current (2023) term.
In the Governor's press release regarding HB7, Florida Senate President Wilton Simpson is quoted:
“Every person is created equal and entitled to their dignity as an individual. We have heard concerns that students and workers are being pushed to adopt the personal or political viewpoints of employers, teachers(,) or textbook authors. This bill protects our individual freedoms and prevents discrimination in public schools and the workplace while supporting factual, educational discussions for our students.”
Thus, this statutory amendment is directed toward respect for individualism and opinion in "students and workers." There is a strong sentiment here of respect for the differences and beliefs of people in the context of a broad spectrum of issues that impact education and employment. The implementation of these individual protections may be challenging for employers.
HB7's amendment of section 760.10 brings focus to the challenging and conflicted times in which we live. There are a great many perspectives on race in America, discrimination, and various ideologies. Some extol history, others decry it, and some strive to rewrite it. The changes in section 760.10 may lead to classroom discussion of perspectives and conclusions regarding race, race relations, and more.
The Florida State University (FSU) Office of Faculty Development published an undated memorandum providing guidance to instructors. It says that
"this statute does not prevent discussion of controversial subject matter, nor does it remove or override instructors’ freedom to determine what and how they teach."
There is recognition there that certain academic freedom in the classroom is worthwhile. The memorandum notes that there are subjects and topics that "are controversial, and perhaps difficult and painful for some students." And, there is recognition that education is a foundation for life, a preparation for greater struggles and challenges in the real world. In order to "prepare students to thrive and flourish, it advocates classroom interaction providing experience with "civil dialogue, respect for others, and openness to new ideas" to that end.
The FSU memo perspective is not universally shared. Some have filed a lawsuit challenging the new law. WFSU reported on October 15, 2022 that some believe the new law suppresses free speech ("at least four lawsuits have been filed challenging the law."). the WFSU article notes that the law
“does not prohibit discussion of the concepts … provided such training or instruction given in an objective manner without endorsement of the concepts.”
Despite that, and despite the plain language of the statute, some find the law questionable. There were recent proceedings as regards enjoining enforcement of the statute until litigation has concluded. The judge in those proceedings questioned whether the law might "result in the students' inculcation into certain beliefs." The law certainly provides some such parameters on not labeling people "morally superior," "racist, sexist, or oppressive," or "privileged or oppressed." There are statements regarding the broad assignment of race-based "responsibility for" and "discriminat(ion) against," as well as the assignment or assertion of "guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part."
Interestingly, the judge reportedly questioned litigants regarding "indoctrination," and seemingly labeled some state arguments regarding the law "dystopian." The focus of these particular cases seems to be primarily the potential for a balanced and respectful classroom discussion of disparate ideas and beliefs. Much of the judicial inquiry that was reported referenced classrooms, professors, and teachers.
The judge even suggested that the "mention (of) affirmative action" might be actionable under the law. That seems at odds with the clear mandate that the law “does not prohibit discussion of the concepts." There was perhaps a hint of some flavor conveyed in this press report that suggests a perception of the judge straying from the role of impartial arbiter and undertaking the role of inquisitor as regards the impact and import of the statute. I have often discussed that subject, and advised many judges to avoid such an appearance.
In the workplace, there will also likely be challenges. There is a current widespread effort to drive for diversity, equity, and inclusion in the workplace. See Diversity, Equity and Inclusion (October 2022). Those may possibly include affirmative action, as well as workplace discussions of perspective, perception, and belief. Those discussions may include training and continuing education that could face the same educational or instructional constructs discussed by the WFSU report.
The legal parameters of discrimination as set forth in this statute may bring legal challenges, management challenges, and the more generalized challenges of a changing and evolving workplace and workforce. And, through various changes and challenges, there will be work for management in driving and facilitating conversation, dealing with competing perceptions and beliefs, and coalescing varied and diverse individuals into strong and cooperative teams that pull toward common goals. Management will perhaps struggle with the implementation of solutions, amongst the many other challenges such as workplace safety that already exist, persist, and confront.
Perhaps the most important element of Section 760.10 is the balance provision mentioned above. The items in the eight subparagraphs:
"may not be construed to prohibit discussion of the concepts listed therein 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"
Perhaps, it is permissible to discuss these topics? Perhaps one might have a personal belief that someone is "inherently racist, sexist, or oppressive" "by virtue of his or her race, color, sex, or national origin?" However, it is likely impermissible to condition someone's
"employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity"
on some litmus test that they agree with that personal belief? The progress of this law's implementation and the outcome of litigation surrounding it will be of interest to those in the world of employment and education.
