By Annette Tyman, Brandon L. Dixon, and Elizabeth L. Humphrey

Seyfarth Synopsis: The Eleventh Circuit recently issued an opinion blocking the enforcement of Florida’s “anti-woke” law. The Court struck down the law on the grounds that the law impermissibly infringes on employers’ free speech rights by limiting the concepts that employers can espouse in mandatory corporate DEI training.

On March 4, 2024, the Eleventh Circuit upheld a federal district court’s ruling that blocked the workplace restrictions of Florida’s “anti-woke” law on the grounds that those restrictions violate the First Amendment. As discussed in our earlier post, Florida amended its employment discrimination laws in 2022 by passing the “Stop the Wrongs to Our Kids and Employees,” or Stop WOKE (the “Act”). The Act prohibits employers from requiring employees to attend meetings where the company seemingly endorses concepts in programs and trainings that members of one race or sex are morally superior to others, are inherently racist or sexist, carry certain privileges,  or should feel guilty about the past actions of their ancestors.

In, Inc., et al v. Desantis, et al, opponents of the Act sued the Florida Governor, Florida Attorney General, and several members of the Florida Commission on Human Relations in the Northern District of Florida to challenge the Act.  Honeyfund and several other companies wanting to host mandatory trainings that highlight “diversity, equity, and inclusion” issues alleged that the Act violates their rights to free speech, and that the Act is both vague and overbroad in violation of the Fourteenth Amendment. The Florida Attorney General argued that the Act regulates employer conduct because it bans employers from requiring employee attendance at meetings where certain race-related concepts are taught. Under the State’s theory, the Act does not implicate the First Amendment because it regulates conduct, not speech. The district court granted a preliminary injunction prohibiting enforcement of the Act, reasoning that the mandatory-meeting provision is both unconstitutionally vague and an unlawful content- and viewpoint-based speech restriction.

In upholding the district court’s ruling, the Eleventh Circuit’s decision contained several key takeaways:

  • The Court found that the Act “limits its restrictions to a list of ideas designated as offensive,” and in doing so, “targets speech based on its content.”
  • The Court characterized the Act as one that committed “the greatest First Amendment sin” by directly regulating and penalizing certain viewpoints.
  • The Court explained that the Act is subject to “strict scrutiny” (i.e., must be “narrowly tailored to serve compelling state interests”) because it is a regulation restricting a particular viewpoint. The Court concluded Florida does not have a compelling interest in “creating a per se rule that some speech, regardless of . . . the effect it has on the listener, is offensive and discriminatory.”

Ultimately, the Eleventh Circuit upheld the preliminary injunction banning enforcement of the Act in the workplace. Florida has stated that it intends to explore avenues to appeal the Eleventh Circuit’s decision. In light of this ruling, however, Florida may not enforce the Act to prohibit employers from requiring its employees to attend training that discusses the concepts outlined in the Act, which is a major blow to one of the first legislative attempts to directly regulate private employer DEI efforts. This result may have a chilling effect on other jurisdictions looking to copy Florida’s anti-DEI playbook through similar legislation.

Despite the ruling in this case, employers should remain vigilant about closely scrutinizing the contents of their DEI training materials to ensure the substance and delivery of the trainings do not run afoul of anti-discrimination and anti-harassment laws. Trainings that are unduly critical or harsh towards certain demographic majorities, for example, could be subject to legal challenge under Title VII for creating a hostile work environment. We recognize that the diversity and inclusion landscape is shifting quickly beneath employers’ feet. As such, we are closely following this Act, as well as other similar DEI-related legislation and litigation that are currently on the rise.

Stay tuned for continued updates. For additional information, we encourage you to contact the authors of this article, a member of Seyfarth’s People Analytics team, or any of Seyfarth’s attorneys.