On March 4, 2023, the U.S. Court of Appeals for the Eleventh Circuit struck down a part of a politically charged Florida law known as the “Stop WOKE Act” that sought to restrict workplace training on certain diversity, equity, and inclusion (DEI) concepts, as unconstitutional under the First Amendment of the U.S. Constitution. In this eighth installment of Ogletree Deakins’ “DEI Under Scrutiny” series, we take a look at how DEI restrictions may violate employers’ right to free speech.

Quick Hits

• The Eleventh Circuit ruled a Florida law that would prohibit employers from holding mandatory workplace training programs that discuss certain DEI-related topics was unconstitutional under the First Amendment.
• The restriction was part of a broader law known as the “Stop WOKE Act” signed by Governor Ron DeSantis in April 2022 to limit DEI in education and employment.
• The Eleventh Circuit rejected arguments that the law sought to stop “invidious discrimination” that the state has an interest in prohibiting.

A unanimous three-judge panel for the Eleventh Circuit in Honeyfund.com Inc. v. Governor, State of Florida, ruled that the restriction was a content- and viewpoint-based speech restriction that violates the First Amendment, rejecting arguments by the state of Florida that the law only regulates conduct in that it prohibits certain mandatory employee training programs.

The Individual Freedom Act (IFA), which was commonly referred to as the “Stop the Wrongs to Our Kids and Employees (WOKE) Act,” had raised concerns for employers as it restricted the types of training programs regarding anti-harassment and anti-discrimination programs or other DEI programs, such as unconscious or implicit bias and systemic racism.

The Eleventh Circuit ruled that though the law restricted conduct in that it prohibited certain types of mandatory training programs, the law was primarily a restriction on speech because it prohibited programs based on certain messages employers wanted to deliver to employees and with which the state did not agree.

The appellate court further rejected arguments that even if the law did regulate speech, it only prohibited “invidious discrimination,” which the state has a compelling interest in regulating.

Individual Freedom Act

The IFA, signed by Governor Ron DeSantis in April 2022, banned certain workplace training programs, prohibiting employers from requiring “any individual, as a condition of employment,” to participate in “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” certain DEI-related beliefs. Such prohibited concepts include “[m]embers of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin” or that individuals, “by virtue of” their “race, color, sex, or national origin, [are] inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

Two employers that wished to mandate DEI training programs for employees and a firm that contracts with employers to host such meetings challenged the mandatory-meeting provision of the IFA. They alleged that the IFA is unconstitutional under the First Amendment because it violated their rights to free speech and the law is both vague and overbroad. In August 2022, a federal judge issued a preliminary injunction blocking the IFA.

The legal challenge also proceeded in the context of the Supreme Court of the United States’ June 2023 decision in Students for Fair Admissions, Inc. v. Harvard College (SFFA decision), which struck down certain race-conscious admissions policies in higher education. The SFFA decision has opened new questions about the lawfulness of DEI programs in employment to the extent that they may base opportunities on protected characteristics such as race, color, sex, or national origin.

The Decision

On appeal, the state of Florida argued that the IFA only prohibits employers from holding mandatory employee meetings on the prohibited concepts based on race, color, sex, and national origin, and therefore only seeks to restrict conduct and not speech. However, the Eleventh Circuit ruled that the state could not characterize or reframe the law as a conduct regulation since it prohibited employers from holding training programs on particular subjects that the state disfavors.

Further, the appellate court rejected the argument by the state of Florida, that, if anything, the law prohibits concepts on race, color, sex, and national origin that the state categorized as “invidious discrimination” that the state may constitutionally regulate or prohibit under the First Amendment. Florida likened the IFA to Title VII of the Civil Rights Act of 1964, a federal law that prohibits employment discrimination based on protected characteristics, arguing that if the IFA is unconstitutional, then Title VII must be unconstitutional for the same reason.

Applying strict scrutiny, the Eleventh Circuit found that even if “many people find these views deeply troubling [that] does not mean that by banning them Florida is targeting discrimination.” The appellate court ruled the law was not narrowly tailored to protect unwilling employees, but instead, broadly focused on messages employers could deliver their employees.

The Eleventh Circuit held that just because the IFA’s stated purpose is to prohibit discrimination does not make it the same as Title VII. While Title VII “may have an incidental effect on speech, it is not directed at it,” the court said. At the same time, the court noted “there are valid concerns about how Title VII and the First Amendment could collide,” but that is why courts “exercise special caution when applying Title VII to matters involving traditionally protected areas of speech.”

Next Steps

While the Stop WOKE Act was politically charged, the law’s allegedly broad and vague restrictions on workplace training programs had raised serious concerns for employers. Following the law’s passage, the Supreme Court’s SFFA decision has further raised questions about employer DEI programs, at least to the extent that they may limit employment opportunities based on protected classes. But the Eleventh Circuit’s ruling may show that attempts by states to restrict employers from discussing DEI concepts in the workplace could continue to face scrutiny under the First Amendment.

For more information on DEI policies, initiatives, and strategies including increased demands for inclusivity and belonging in the United States and globally, as well as challenges and litigation threats following the Supreme Court’s decision that race-conscious affirmative action admission policies violate the Equal Protection Clause and the Fourteenth Amendment, please see Ogletree Deakins’ “DEI Under Scrutiny” series, which examines the evolving DEI legal landscape since the Supreme Court’s decision and offers employers assistance in balancing these concerns while moving forward with legally defensible programming and initiatives.