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On August 18, 2022, U.S. District Judge Mark E. Walker issued a preliminary injunction blocking part of Florida’s House Bill (H.B.) 7, known as the Individual Freedom Act (IFA), which prohibits employers from requiring employees to undergo a training “that espouses, promotes, advances, inculcates, or compels” employees to believe any of various sex- and race-based discrimination concepts. In the ruling, the judge said the law is likely unconstitutional under the First Amendment of the U.S. Constitution as a “naked viewpoint-based regulation on speech.”

“Recently, Florida has seemed like a First Amendment upside down,” Judge Walker said, referring to the popular streaming series Stranger Things. Normally, the First Amendment bars the government from burdening speech, not private actors; however, in Florida, the “First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely,” the judge said.

Two employers that wished to mandate diversity, equity, and inclusion (DEI) trainings for their employees without fear of conflicting with the vague law and a consulting company that provides such trainings challenged the IFA for violating their rights under the First Amendment. The employers claimed they have had to alter their training sessions and the consultant claimed it had lost clients as a result of employers not wanting to move forward with trainings out of concern with violating the law.

Specifically, the IFA prohibits private employers from espousing concepts based on “race, color, sex, or national origin,” including that an individual— because of an individual’s race, color, sex, or national origin—is “inherently racist, sexist, or oppressive,” is “privileged or oppressed,” or “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.”

The state responded that the IFA only restricts conduct rather than speech and even if it does regulate speech, the law passes constitutional scrutiny. The state further argued in the face of credibility that if any part of the IFA is struck down, then it would call into question Title VII of the Civil Rights Act—the federal law that makes a hostile work environment unlawful. But the judge did not agree.

Judge Walker held that many of the restrictions are confusing and vague, questioning what it means for one race to be “morally superior” to another, among other questions. In the end, the judge held that the law is likely overly broad and not sufficiently narrowly tailored, as required under the applicable analysis. The law “sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings Plaintiffs wish to hold and what the [Florida Civil Rights Act] already bars,” according to Judge Walker.

The IFA was part of House Bill (HB) 7, signed by Governor Ron DeSantis in April 2022, called the “Stop the Wrongs to Our Kids and Employees (WOKE) Act,” which prohibits various sexual and racial discrimination concepts in schools and in the employment context. HB 7 is facing several legal challenges.

“Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.” And so it did.

Key Takeaways

The preliminary injunction ruling means at least for now that Florida employers will have more flexibility in conducting and mandating diversity, equity, and inclusion (DEI) and harassment training for their employees. The IFA imposed what many have viewed as vague guidance regarding what Florida referred to as potentially offensive conduct, without enough clarity to know what conduct was actually prohibited. Employers still face challenges to eradicate racial and sexual harassment and discrimination in the workplace, but now they retain additional resources in their toolboxes to do so.

Our recent podcast, “In The Breakroom With Bill, Episode 6: Florida’s Stop WOKE Bill on Race and Identity and What It Means for Corporate Training Programs,” includes details on Florida’s Stop Woke bill. Ogletree Deakins will continue to follow this litigation and developments with the Florida law and post updates on our Florida and Diversity and Inclusion blogs. Important information for employers is also available via the firm’s webinars.

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