On June 27, 2022, the U.S. District Court for the Northern District of Florida denied a request to enjoin the provisions of Florida HB 7, named the Individual Freedom Act (“IFA”) or the so-called “Stop-WOKE” law (the state’s acronym for “Stop Wrongs to Our Kids and Employees”), which dramatically limit what and how employers can communicate to employees in workplace training relating to diversity, non-discrimination, and non-harassment.  The law is scheduled to go into effect on July 1, 2022.  At least for now—the court’s decision means that an employer’s diversity, equity and inclusion (DEI) training materials must refrain from sending any messaging to employees that could be construed as requiring employees to believe in concepts like privilege, oppression, and inherent biases that are based on race, color, national origin or sex.

As we previously reported, almost immediately after the law was signed, five individuals, including three teachers, a student, and an individual consultant who provides DEI training to employers, filed a lawsuit in the Northern District of Florida seeking a preliminary injunction against it.  In their suit, the plaintiffs claim that the law violates free speech rights of Florida employers and educators, and that key provisions of the new law are unconstitutionally vague and overbroad when they impose sweeping general principles with which Florida employers are required to conform or with which they are prohibited to disagree.

Background

By way of background, HB 7 makes it unlawful for any covered employer (generally, those with employees in Florida and employing 15 or more employees company-wide) to subject any individual working in Florida, as a condition of employment, to training or instruction that “espouses or promotes” such individual to believe that any of the following concepts constitutes discrimination based on race, color, sex, or national origin:

• That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
• That an individual, by virtue of their race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
• That an individual’s moral character or status as either privileged or oppressed is necessarily determined by their race, color, sex, or national origin.
• That members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
• That an individual, by virtue of their race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
• That an individual, by virtue of their race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
• That an individual, by virtue of their race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
• That such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

Littler’s detailed analysis of the law may be found here.

A Summary of Judge Walker’s Decision

After full briefing, the court’s decision tabled plaintiffs’ substantive arguments.  Judge Mark Walker avoided ruling on the constitutional questions raised as to whether the provisions that prohibit employers from requiring employees from “engaging in any activity” that promotes certain concepts were unconstitutionally vague or violated free speech protections.  Instead, Judge Walker found that Dr. Hodo, the plaintiff challenging the employment provisions of the IFA, a consultant who provides workplace training on diversity and inclusion, did not present evidence of standing. 

Dr. Hodo promoted two theories of standing – one on behalf of her potential future clients, and one of her own injury.  However, as to her standing on behalf of third parties, the court found that her relationship as a consultant to employers does not give her standing to complain of their potential injury from the law.  Turning to Dr. Hodo’s claim of standing on her own behalf, she argued injury because her business opportunities will diminish if employers cannot provide such training.  Judge Walker determined that she simply did not present evidence that she actually lost any clients, that any clients told her that they would no longer hire her, or that any client has expressed trepidation about hiring her.  Thus, Dr. Hodo’s hypothetical claims prevented her from establishing standing.

Without standing to challenge the law, Judge Walker concluded that he was unable go any further in his analysis of the constitutional arguments presented. 

Judge Walker conspicuously commented that “this Court is not determining whether the challenged regulations are constitutional, morally correct, or good policy. And this Order should not be interpreted as endorsing the IFA or the related Board of Education regulation.”

“Not So Fast, My Friend!”

While the injunction in Falls v. Desantis was denied (the standing of one plaintiff challenging the education provision of the IFA is unresolved as the parties are providing supplemental briefing on that issue), as another renowned Floridian who has enjoyed saying nearly every Saturday morning before college football games:  “Not so fast, my friend!”  Notably, Judge Walker remarked in yesterday’s ruling that nothing prevents employers from raising the arguments raised by Dr. Hodo on their own behalf, specifically referring to another lawsuit that was filed last week.¹ On June 22, 2022, this second lawsuit to block the “Stop WOKE” Act was filed in district court by Honeyfund.com, a Clearwater-based honeymoon registry company, which alleged its plan to provide certain DEI training to its employees in Florida appears to violate the dictates of the IFA. The lawsuit is joined by another individual DEI consultant, and a corporation that works with other companies to provide DEI trainings. Immediately after filing their lawsuit, the plaintiffs in this most recent case filed a notice of related matters reflecting that their arguments largely mirror those raised by Dr. Hodo in the first challenge to the IFA.  Perhaps anticipating Judge Walker’s ruling yesterday, the Honeyfund.com lawsuit is poised to “fix” the standing issue identified by Judge Walker and perhaps return the issue to his court to await a substantive decision on the constitutional challenges that he skirted in his opinion.   

Going Forward

The court’s decision means that the IFA will go into effect beginning this Friday, July 1, 2022.  It is likely that the decision will be appealed to the U.S. Circuit Court of Appeals for the Eleventh Circuit, which may uphold, reverse, or modify the lower court’s decision.

Given the uncertainty as to the ultimate fate of the law, Florida employers with operations and/or employees in Florida, should consider placing a strategic pause on mandatory training while they coordinate plans to take preparatory action to comply with the Act.  Florida employers that conduct DEI, unconscious bias, or “Respect at Work” trainings—independently or through vendors—are recommended to consult with counsel as to the content, scope, and facilitation practices of such trainings, and any related workplace DEI policies, to ensure that they are compliant with the Act.  Additionally, multi-state employers with Florida operations should be mindful that a broad, company-wide approach to trainings on these topics could inadvertently result in violations of the IFA and damages.

Littler’s Workplace Policy Institute will keep readers apprised of developments.