Florida “Stop WOKE Act” Enacted to Restrict DEI Initiatives by Employers, Associations, and Certification Organizations
The new Florida expansion of the Florida Civil Rights Act faces an immediate legal challenge.
A federal court temporarily blocked enforcement of a controversial Florida law on August 18, 2022, finding that the plaintiffs were highly likely to prevail on their claim that the law was unconstitutional. As we have discussed previously, the Individual Freedom Act (IFA), also known as the Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act, or Stop WOKE Act, amended the Florida Civil Rights Act of 1992 (FCRA) by adding a new section to the FCRA defining certain diversity, equity, and inclusion (DEI) programs as unlawful discrimination if mandated by employers, associations, or certification organizations. The IFA went into effect on July 1, 2022.
The IFA lists eight specific “concepts” as unlawfully discriminatory if “espouse[d]” or “promote[d]” through “training, instruction, or any other required activity” as “a condition of employment, membership, certification, licensing, credentialing, or passing an examination.” The restricted list includes the concepts of white or male privilege and of unconscious bias relating to race, color, sex, or national origin. The IFA also prohibits promoting the concepts of cultural competency or cultural humility as preferable to “racial colorblindness” in advancing the values of equity and inclusion. Discussion of the restricted concepts is permitted under the IFA only if done “in an objective manner without endorsement of the concepts.”
The new law attracted several legal challenges. The plaintiffs in one lawsuit, Honeyfund.com v. DeSantis, included Florida employers who regularly hold mandatory DEI trainings for their employees incorporating some of the restricted concepts, as well as diversity and inclusion consultants who give such DEI trainings. The Honeyfund.com plaintiffs challenged the constitutionality of the Florida law, arguing that the IFA is a viewpoint-based restriction on speech that violates the First Amendment, and also that the provisions of the IFA were unconstitutionally vague and would chill protected speech.
Judge Walker of the federal district court for the Northern District of Florida agreed. In a striking opening, the court order granting the preliminary injunction against enforcement of the IFA compared the Florida law to the “upside down” in the Netflix series Stranger Things: “a parallel dimension containing a distorted version of our world.” The decision characterized the IFA as turning Florida into
a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.
Because the IFA prohibits endorsing the restricted concepts in employee trainings and other contexts but not condemning those concepts, the court held that “the IFA targets only those viewpoints with which the State disagrees” and thus was subject to strict scrutiny under the First Amendment to the Constitution. The court rejected the State’s argument that striking down the IFA would directly threaten the validity of existing antidiscrimination laws that prohibit hostile working environments. Instead, the court characterized antidiscrimination laws such as Title VII as targeting discriminatory conduct and only incidentally burdening speech (such as racial slurs), to the extent the speech “objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work.” According to the court, the IFA
is the inverse. It targets speech—endorsing any of eight concepts—and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the IFA requires no evidence that the statement be even subjectively offensive.
Having determined that the IFA was subject to strict scrutiny, the court held that the State had failed to narrowly tailor the law to combat discrimination, even accepting the premise of the State’s arguments that attending trainings incorporating some of the restricted concepts might make some White employees uncomfortable. The court reasoned that the FCRA already prohibits DEI trainings that create a hostile work environment for White employees. Because “the IFA sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings Plaintiffs wish to hold and what the FCRA already bars,” the IFA is “not narrowly tailored [and] violates the First Amendment.”
The court also held that the IFA is unconstitional on vagueness grounds, because, “with no guidance on the line between ‘objective discussion’ and ‘endorsement’ or what those poles mean, Plaintiffs will self-censor their speech.” In the absence of explicit standards circumscribing enforcement of “objectivity,” the court warned that the State could “weaponize this term to further discredit the prohibited concepts” and enforce the provisions on an arbitrary and subjective basis. Accordingly, the court held that the IFA as a whole is also impermissibly vague in violation of the Fourteenth Amendment of the Constitution.
After weighing all the factors relevant to the preliminary injunction motion, the court issues an immediate preliminary injunction against enforcement of the IFA. As a procedural matter, the case continues, and the DeSantis administration may also appeal the preliminary injunction to the U.S. Court of Appeals for the Eleventh Circuit. For now, however, Florida employers, associations, and certification bodies face no heightened restrictions on the content of their DEI trainings and conduct codes.