FLORIDA SEEKS TO STOP “WOKE”

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Patricia Tsipras

May 19, 2022

On March 4, 2024, the United States Court of Appeals for the Eleventh Circuit upheld a lower court’s ruling that the employer portion of Florida’s Individual Freedom Act (aka Stop W.O.K.E Act), which was signed into law in 2022, is unconstitutional, as it infringes on companies’ free speech rights.  Judge Britt C. Grant wrote the opinion of the Court and held that the Act commits “the greatest First Amendment sin” because it “penalizes certain viewpoints” by “limiting its restrictions to a list of ideas designated as offensive” and then “barring only speech that endorses any of those ideas.”  The Court’s opinion is available here.

Effective July 1, 2022, the Florida Civil Rights Act has been amended to limit the topics that employers can discuss during diversity, non-discrimination, and non-harassment training.

Content of the New Law
The amendment, also known as the “Stop W.O.K.E Act,” or “Stop the Wrongs to Our Kids and Employees,” states that it is unlawful discrimination to subject employees to any mandatory training or instruction that “espouses, promotes, advances, inculcates, or compels the employee to believe” or endorse certain concepts, including:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of their race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by their race, color, sex, or national origin.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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

The law does not prohibit discussion of these concepts if the training is given objectively and without endorsement.

Coverage
Both private and public employers in Florida with at least 15 employees are subject to this law.

Attention and Litigation
The law has already drawn national attention, as well as litigation.  Plaintiffs are challenging the Act’s constitutionality, arguing that it limits the employers’ rights to free speech.  Florida’s law and the litigation stemming from it is similar to Executive Order 13950, which President Trump signed in September 2020 to apply to federal agencies, federal contractors, and federal grant recipients to “foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics” and eliminate “un-American” and “divisive concepts” from diversity and inclusion trainings.  Executive Order 13950 was challenged in California federal court before President Biden revoked it in January 2021.

Employer Take-Aways
Regardless of any challenges, and even if you do not employ workers in Florida, it would be wise to review your training programs, specifically related to diversity and inclusion, to ensure that they aim to provide training that is objective and does not endorse any specific concepts.

*Special thanks to Claire Miller, our intern from the University of Notre Dame, for her contributions to this article.

The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Florida, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.