Strike One…

In 2021 Florida passed a unique law known as the Individual Freedom Act (IFA), or “Stop-WOKE” law (the state’s acronym for “Stop Wrongs to Our Kids and Employees”). The IFA contains two parts, one directed to educational institutions, and one directed at employers. Both attempt to restrict discussion of certain concepts. The employer component of IFA prohibits companies from mandating that employees attend meetings or training that support messages that members of one race or sex are morally superior to others, are inherently racist or sexist, or cause “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.”

In August 2022, U.S. District Court Judge Mark Walker of the Northern District of Florida issued a preliminary injunction prohibiting the Florida Commission on Human Relations and the Florida Attorney General from enforcing these employment provisions.

This was “Strike One” against the IFA.

Strike Two

The State of Florida appealed. Now, more than 18 months after the preliminary injunction was issued, the Court of Appeals for the Eleventh Circuit has spoken.

On March 4, 2024, a unanimous three-judge panel not only upheld and continued the preliminary injunction, but also went further, determining the law, which “seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive,” is not constitutional.  The panel noted that “[i]ntellectual and cultural tumult do not last forever, and our Constitution is unique in its commitment to letting the people, rather than the government, find the right equilibrium.” 

In coming to its conclusion, the Eleventh Circuit noted that several arguments presented by Florida represented an apparent effort to hide the IFA’s true nature of targeting viewpoint-based speech.  While crediting the arguments as “clever,” the court concluded that the challenged law was nothing more than “a textbook regulation of core speech protected by the First Amendment.”  The court rejected Florida’s “captive audience theory,” which it claimed would allow a government to “prevent discriminatory speech thrust upon an unwilling viewer or listener” in a mandatory training session or the like.  Acknowledging that this theory might be persuasive in other contexts, the judges determined “the government cannot decide to ban speech that it dislikes because this would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”    

Because the IFA regulates speech, not conduct, the appeals court applied a strict scrutiny analysis, concluding that the IFA does not serve a compelling interest of the state (which Florida claimed was protecting individuals from discrimination in the form of speech that falls under the umbrella of the prohibited concepts). 

Going beyond what it needed to decide to uphold the injunction, the Eleventh Circuit noted that while many Floridians may hate the type of speech the IFA attempts to restrict, “the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.” 

This was “Strike Two” against the IFA.

Strike Three?

The state has until March 18 to petition for rehearing by the full circuit.  So far, neither the governor nor the state attorney has made an announcement about the state’s intention to appeal or otherwise continue the fight. 

As a result of this latest ruling, Florida may no longer enforce IFA to prohibit employers from requiring employees to attend training that discusses the concepts proscribed in the Act.  If Florida simply acquiesces, the decision could signal the end of broader efforts to regulate private employers’ DEI programs across the country.  Given that Florida was a Stop-WOKE “pioneer” in attempting to restrict how private employers structure and communicate efforts on diversity, equity and inclusion – with many other states watching Florida’s experience before implementing similar laws – the long-term impact of this decision could be significant.

Accordingly – for now at least – for employers in Florida, Georgia and Alabama (where Eleventh Circuit precedent applies), this decision means that employers have discretion to structure, communicate about and conduct training about IFA’s “restricted areas.”  

That said, employers should continue to ensure that neither the substance nor facilitation of their DEI efforts violates state and federal EEO laws, thus minimizing the risk of non-traditional complaints of discrimination (commonly referred to as “reverse discrimination”).

Littler will continue to follow developments in this area in Florida and other states and will keep readers apprised of significant updates.