On August 18, 2022, Judge Mark E. Walker, Chief U.S. District Judge for the Northern District of Florida, issued a preliminary injunction after finding certain provisions of Florida’s Stop The Wrongs To Our Kids Act (Stop WOKE Act) unconstitutional. In particular, Judge Walker’s order halts the Florida Commission on Human Relations and Florida Attorney General Ashley Moody from enforcing the Stop WOKE Act as it applies to employers’ discrimination, harassment, and diversity and inclusion training.
Enacted as House Bill 7, the Individual Freedom Act, in April 2022, Governor Ron DeSantis referred to the law as the Stop WOKE Act due in part to its prohibition of certain concepts and ideas in employer-mandated training. Specifically, the Act amended the Florida Civil Rights Act of 1992 (FCRA) to prohibit an employer from “subjecting any individual, as a condition of employment . . . to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe” any of the “concepts” identified below. Such employer conduct “constitutes discrimination based on race, color, sex, or national origin.” The law identified the following eight (8) concepts:
- Members of one race, color, sex, or national origin are morally superior from non-members of such protected class;
- An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin;
- 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;
- An individual, by virtue of his or her 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;
- An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion;
- An individual, by virtue of his or her 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; and
- 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.
Upon reviewing the Stop WOKE Act, Judge Walker found that the provisions relating to employers violated both the First and Fourteenth Amendments of the U.S. Constitution. With respect to the First Amendment, Judge Walker found that the “challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny.” In analyzing the Stop WOKE Act under the strict scrutiny standard, the court explained that “content-based laws like the [Act] ‘are presumptively unconstitutional’” and the Stop WOKE Act “‘may be justified only if the government proves that [it] is narrowly tailored to serve a compelling state interest.’” Ultimately, Judge Walker found that the Stop WOKE Act was not narrowly tailored because the FCRA already prohibited the majority of what the Act seeks to prohibit. In sum, the court found that the Stop WOKE Act “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 FCRA already bars.”
With respect to the challenge of the Stop WOKE Act under the Fourteenth Amendment, Judge Walker found that the challenged provisions of the Act were impermissibly vague and, therefore, violated due process rights guaranteed by the Fourteenth Amendment. In particular, the court found that several of the eight specifically enumerated concepts that are prohibited under the Act are impermissibly vague. Judge Walker further explained that, even if some of the concepts were not necessarily vague on their own, the Act as a whole is impermissibly vague because a vague “‘objectivity’ standard commands the entire statute.”
Although the Stop WOKE Act is temporarily blocked as it relates to employer training, many believe Governor DeSantis is likely to seek an appeal of Judge Walker’s preliminary injunction to the Eleventh Circuit Court of Appeals. While the injunction of the Stop WOKE Act may not impact employers who have already revised their trainings to comply with the Act’s amendments to the FCRA, employers that would like to know how the Stop WOKE Act and the court’s injunction specifically impacts their particular training programs should consult with their labor and employment counsel.
Contact a member of the GrayRobinson Labor and Employment Section.