Cheryl Wilke Speaks with Law360 About New Florida Legislation's Impact on Workplace Bias Training

Ft. Lauderdale, Fla. (August 31, 2022) - Fort Lauderdale Partner Cheryl Wilke recently spoke with Law360's Employment Authority for an article about a controversial Florida state law that attempts to regulate how private companies address race and sex in workplace bias training. U.S. District Judge Mark E. Walker issued a preliminary injunction, temporarily blocking enforcement of the law. The article, titled "5 Takeaways After Judge Halts Fla. Law Curbing Bias Training," outlines H.B. 7, also known as the Individual Freedom Act, and nicknamed the "Stop WOKE" Act. Signed by Governor Ron DeSantis on April 22, the law applies to private employers throughout the state.

Ms. Wilke emphasized that employers do not need to change any internal workplace training materials until there is further action taken by the courts. "What I like to say is that the Florida Legislature passing that law was a shot across the bow," she told Law360. "They knew that they were going to get [a] contest from it. I'm not sure they believed it would come this quickly, but now we sort it out. Whether or not the law eventually gets rewritten or redrafted … or simply gets struck, we just [don't] know, and my guess is we won't know for probably 12 months."

Ms. Wilke added that employers' reactions to the law will likely be similar to how employers approached issues such as mask and vaccine mandates during the COVID-19 pandemic. "When all of this was going through the court, [employers] really kind of sat back and took a wait-and-see attitude," she said. "Basically, employers want everything to go through the system before they invest in any corporate-level changes, whether that's to training or processes or whatever. And you can't blame employers — they don't want to expend a whole lot of money to change all their training and their processes, whether it's online training or in-person training, and then three months from now change it back. So, as long as the status quo is acceptable, I think that the majority of employers will simply maintain [it]."

With uncertainty looming around the bill’s future, Ms. Wilke opined that the main issue with the law that led the court to temporarily block it is that it isn't clear whether individuals or the state have a private cause of action, nor whether such a private cause of action for individuals might be added in the future.

"The question is: Where would they go? What path would they take?" Ms. Wilke said. "Right now, while the injunction is in place, there's really no place to go. Could [a charge] be held in abeyance? Sure. But my guess is that it's more likely that it would be dismissed as not being ripe because right now there's no cause of action available."

Ms. Wilke is a member of Lewis Brisbois' Labor & Employment and Complex Business & Commercial Litigation Practices. She specializes in employment law, corporate compliance, and business litigation for mid-market and national businesses. She recently co-authored an Expert Analysis for Law360 about a Florida appellate court ruling that's expected to result in increased employment discrimination litigation for smaller employers in Miami-Dade County.

Read the full Law360 Employment Authority article here (subscription may be required).

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Cheryl Wilke
Managing Partner
Fort Lauderdale, FL
Los Angeles, CA
Washington, D.C.
Miami, FL

954.495.2220
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