Expect Minor Private Sector Impact From Iowa's “Divisive Concepts” Law

Iowa Governor Kim Reynolds signed House File 802 (HF 802) into law on June 8, 2021. The law prohibits Iowa public employers from teaching or promoting “divisive concepts.” As defined by the law, “divisive concepts” includes what are commonly known as critical race theory and implicit bias theory.

“Divisive concepts” includes theories that advocate that one race or sex is inherently superior to another, that the United States of America or the state of Iowa are fundamentally or systemically racist or sexist, that an individual by virtue of that person’s race or sex is inherently racist, sexist or oppressive - whether “consciously or unconsciously.“ The law also makes it clear that it is not unlawful or discriminatory to advocate that a meritocracy or “colorblind“ workplace is desirable.

Because of a number of limitations incorporated into the law, it will probably pass legal muster. For example, the law makes it clear that it does not infringe on the freedom of the courts. The law explicitly allows state and federal courts to impose otherwise outlawed training as an equitable remedy in the litigation context.

From a practical standpoint, the law should have a minimal impact on training programs and non-discrimination pledges. The law was written carefully to ensure that it does not prohibit robust non-discrimination training of a more traditional nature.  It even allows for trainers to respond to questions based upon divisive concepts. The law also clearly allows the discussion of divisive concepts as part of a broader educational curriculum.

Based upon a preliminary analysis, it appears that the law will be enforced through licensing and funding mechanisms. It does not create civil or criminal liability on the part of those who allegedly violate its prohibitions.

Some are concerned HF 802 strictly forbids any training based upon the concept of implicit bias. That is not the case. HF 802 outlaws training or teaching that “an individual, by virtue of the individual’s race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” A fair reading of that provision indicates that it only prohibits training on the basis that someone who is white has implicit bias because that person is white. That prohibition is actually in harmony with the teaching of true implicit bias experts who maintain that all people of all walks of life hold some degree of implicit bias as to “outsiders” or “the other.”             

In the employment discrimination litigation field, we have been dealing with implicit bias concepts for nearly two decades. Even those social science and psychological experts who advocate the implicit bias theory concede that unconscious biases can easily be dispelled with exposure and familiarity. Only someone who misunderstands implicit bias theory or has an ulterior motive would teach that only one race or gender group is influenced by implicit bias.

Thus, the law does not prohibit training predicated on the theory that some people have unconscious biases. Nor would it prohibit training suggesting that persons should ask themselves if they might be influenced by implicit bias. It simply prohibits pretentious and unsophisticated mischaracterizations of implicit bias theory.

Most public sector employers will be able to continue robust non-discrimination training programs without fear of running afoul of HF 802. They will simply have to be careful to use more traditional and scientifically anchored training concepts.

HF 802 will have little or no impact on Iowa’s private sector. The bill was carefully drafted to cover only public sector employees. This is no doubt due to the fact there would be serious constitutional questions attendant in any attempt to closely regulate private sector speech surrounding the concepts of critical race theory, so called white privilege and implicit bias concepts. Nevertheless, the law should be closely analyzed by Iowa non-public employers.

An employee who refuses to participate in non-discrimination training because it allegedly infringes on constitutional rights such as religious freedoms or the right to free speech or association may have a more potent arrow in their quiver. Iowa has recognized the concept of public policy wrongful discharge for over 30 years. This law arguably evidences the public policy of the state with regard to critical race theory and implicit bias. An employee terminated for refusing to participate in mandated training could theoretically assert that their termination was in violation of a clearly demonstrated policy of the State of Iowa. The drafters of HF 802 were apparently cognizant of this possibility and therefore included a number of provisions that a private sector employer could rely upon in arguing that law does not constitute the policy of the state with regard to all employees. Nevertheless, the legal restrictions built into the law are clearly omitted to public employers. For example, the law clearly states that it is not intended to create a cause of action against the state. A clever employee could argue that language is the best evidence that the policy of the state is to not only discourage divisive concept training, but also to allow private sector litigation.

The more logical interpretation of the law would be that it doesn’t really illustrate the public policy of the state as it applies across the board. Nevertheless, Iowa employers should be cautious as the issue may openly be determined by the courts.