In HR Dive’s Mailbag series, we answer HR professionals’ questions about all things work. Have a question? Send it to [email protected].
Q: Our company runs D&I initiatives across states with different political climates. How should we approach them?
A: “That's something that we've seen a lot of employers asking in our practice,” Emily Chase-Sosnoff, attorney at FordHarrison, told HR Dive. Based in Tampa, she has closely watched developments with the Stop WOKE Act and helped advise employers on D&I in the state and beyond.
Some have questioned whether they should scrap D&I training entirely, but in addition to being counter to what some employees are demanding, Chase-Sosnoff said that approach poses its own risks. “Making sure that all employees feel valued for who they truly are … that can decrease turnover and increase productivity — and it also can reduce the risk of lawsuits,” she said.
So far, Florida’s Stop WOKE Act appears to be the only D&I workplace training legislation any state has passed into law — for now. In the diversity realm, many more states have focused on the education system and teachings regarding systemic racism. Additionally, workplaces have been contending with discrimination lawsuits related to diverse hiring initiatives and goals.
It’s also worth noting that Stop WOKE currently is not enforceable due to a preliminary injunction. In August, a federal district court judge found the language of the bill “impermissibly vague,” in violation of the Fourteenth Amendment, and a “naked viewpoint-based regulation on speech” in violation of the First Amendment. So the law hangs in the balance for now, and it’s “unclear where that lawsuit will eventually land,” Chase-Sosnoff said.
Vague language and injunction aside, there are ways to comply with the law while still conducting training. Trainings in Florida might “talk about how everyone's life story brings value to the organization and how groups are stronger if they're welcoming of different backgrounds and viewpoints,” rather than focusing on specific protected classes like race and gender, Chase-Sosnoff said. “As an added bonus, some employees tend to be more receptive to those broader D&I trainings, which can actually make them more effective.”
Additionally, a simple way to remain compliant in Florida is to make D&I training “truly voluntary,” Chase-Sosnoff said; the Stop WOKE law only applies to mandatory training.
But how should a company that wants to include concepts of unconscious bias and racial colorblindness as much as possible — “potentially prohibited topics” per the Florida law, according to Chase-Sosnoff — approach such trainings across different states?
“If the employer believes that topics like unconscious bias and racial colorblindness are critical to its D&I mission, then that employer might want to have one comprehensive D&I training for states without restrictions and then a separate, more limited or perhaps a voluntary training for states that do restrict the content of D&I trainings,” Chase-Sosnoff said.
In other words, it’s up to the employer to determine the level of administrative burden and risk it is willing to undertake. But making training voluntary is one way employers can be sure, at this point, to remain compliant.
Employers should be careful to note that D&I training is separate from legal training on issues of discrimination, Chase-Sosnoff pointed out. Nondiscrimination and anti-harassment trainings are still “very much best practices,” she said. If such trainings happen to be entwined, it may be worth separating them, especially if the employer plans to alter or make voluntary D&I trainings.
The ever-shifting political sands can make compliance confusing for employers, but that may be nothing new for HR pros. “It can be difficult to stay up to date on all these changes that are happening, but that's not necessarily unique to D&I,” Chase-Sosnoff said. “That's just the nature of employment law.”