Published: December 2024
By: Bryan Anderson
Imagine private employers, with a diverse employee population, that are committed to treating all of their employees fairly in hiring, pay and promotion and wanting to combat institutional racism and sexism. To this end, the employers want to institute a formalized diversity, equity and inclusion (DEI) training program that will cover topics including advancing women in business, as well as understanding gender expansiveness and institutional racism. The employers want to encourage employees to be open to this information, to reflect upon it, and to be attentive to biases in hiring, pay and promotion decisions. These were the intentions and plans of Honeyfund.com, Inc. and Primo Tampa, two Florida companies.
Is mandatory training like this something employers should be allowed to do if they choose, or should it be prohibited?
Florida’s Stop WOKE Act Prohibited Anti-Racism Training
In 2022, Florida answered this question in favor of prohibiting such training by enacting the “Individual Freedom Act”, referred to as the Stop WOKE Act. It was one of several laws enacted in 2022 as part of the Governor DeSantis’s and Legislature’s efforts to define and prohibit “woke ideology.”
For some, the term “woke” describes awareness particularly about history, oppression, and social justice issues. For others, “woke” is a pejorative expression used to denounce progressive action and certain teachings about race.
Florida’s governor championed the “Stop WOKE Act” as standing up against what he called “indoctrination.” He frequently referred to the law during his ultimately unsuccessful run for president, with the slogan that Florida was where “woke goes to die.”
How Florida’s Law Defined and Prohibited a Specific Viewpoint on Racial Justice
Without discussion of the actual prevalence or demonstration of any harms caused by anti-racist employee training, Florida’s Governor and Legislature decided it was a problem that had to be solved and acted to prohibit such.
The Florida state government’s intention to prohibit employers from teaching employees this specific point of view is clear on the face of the statute. The law prohibits mandatory training or instruction by employers on eight concepts involving race and racial equity, including the concept of affirmative action as a remedy for racial discrimination. The law does not, on the other hand, prohibit training that advocates against the racial equity concepts.
The Employee Training “Stop WOKE” Provisions Violate the First and Fourteenth Amendments
During August 2022, in the matter of Honeyfund.com, Inc. v. DeSantis, 622 F.Supp.3d 1159 (N.D. Fla. 2022), Chief Judge Walker of the U.S. District Court for the Northern District of Florida issued a preliminary injunction blocking the state from enforcing the “Stop WOKE” Act’s prohibitions on mandatory workplace activities and trainings, agreeing with the Honeyfund and the other plaintiffs that the Act “discriminates on the basis of viewpoint in violation of the First Amendment and is impermissibly vague in violation of the Fourteenth Amendment.” Id. at 1185.
Appealing the injunction order to the U.S. District Court of Appeals for the 11th Circuit, the State of Florida took the position that the Stop WOKE Act provisions at issue did not improperly regulate speech, but rather prohibited unlawful conduct defined as mandatory employee meetings expressing anti-racist viewpoints listed in the statute. The state disputed that the law violated speech rights, saying that it regulated “conduct.” Florida said businesses could still address the targeted concepts in workplace training — but couldn’t require employees to take part.
The 11th Circuit issued its decision in Honeyfund.com Inc. v. Governor, 94 F.4th 1272 (11th Cir. 2024) on March 4, 2024 upholding the district court’s preliminary injunction order. The court wrote that “[t]his is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy.” Id. at 1275. The court further stated “[a]nd it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.” Id.
The 11th Circuit rejected the state’s claims that it sought to regulate conduct rather than a viewpoint expressed in speech. It described the law as the “latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.” Id.
The court wrote that “[b]y limiting its restrictions to a list of ideas designated as offensive, the act targets speech based on its content. The court continued, “[a]nd by barring only speech that endorses any of those ideas it penalizes certain viewpoints – the greatest First Amendment sin.” Id. at 1277.
On remand in July 2024, Chief Judge Walker granted a permanent injunction against enforcement of the Stop WOKE Act’s workplace training provisions. The order granting the injunction states that the law “violates free speech rights under the First and Fourteenth Amendments to the US Constitution.”
The permanent injunction ended several years of uncertainty for Florida employers, employees, attorneys and consultants engaged in diversity, equity and inclusion training. Honeyfund.com, Primo Tampa, LLC and other Florida employers are now free to provide such training without fear of being found in violation of Florida law.