DIVERSITY CORNER
DIVERSITY CORNER
How The First Amendment Saved DEI Training in Florida
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 .
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