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Employment and Labor

Stranger Things Are Going On: Federal Judge Pulls Florida from First Amendment “Upside Down”

Stranger Things Are Going On: Federal Judge Pulls Florida from First Amendment “Upside Down”

Stop Woke Act Temporarily Blocked

Approved on April 22, 2022, and effective July 1, 2022, Governor DeSantis signed into law certain amendments to Florida’s Education Code and Florida’s Civil Rights Act. These amendments, officially known as House Bill 7 have been commonly referred to as “Florida’s Stop Woke Act.” The intended purpose of the Act is two-fold: (1) to protect students in Florida’s public K-12 schools from certain critical race theory (“CRT”) teachings and indoctrination; and (2) to protect employees against a hostile work environment due to “corporate wokeness” rhetoric HR training that is mandated by the employer in the work place.

When signing the Act into law, Governor DeSantis was quoted as saying: “No one should be instructed to feel as if they are not equal or ashamed because of their race. In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida.”

On Thursday, August 18, 2022, Chief Judge Mark Walker of the U.S. District Court, Northern District of Florida, issued a temporary injunction blocking portions of the Act that restrict how employers can discuss race and sex during required HR training. In issuing the preliminary injunction, the federal court judge likened Florida to the “upside down” and the Court to the heroine “Eleven” in the popular Netflix television series Stranger Things and provided the following opinion:

Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.

Florida’s Stop Woke Act in the Workplace: A Closer Look

Florida’s Civil Rights Act (“FCRA”) provides a private cause of action for an employee or an applicant against their employer when their employer discriminates by, amongst other things, terminating, refusing to hire, or providing different terms and conditions of employment based on an applicant or employee’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The Stop Woke Act expands civil liability for Florida’s employers under the FCRA by specifically providing a new unlawful employment practice in the workplace.

Specifically, the Act prevents an employer from requiring, as a condition of employment, an employee to participate in an activity (certification, licensing, credentialing, training, instruction) that espouses, promotes, advances, inculcates, or compels the employee to believe any of the following “woke” and CRT concepts:

  1. Members of one protected class are morally superior to members of another protected class;
  2. Members of one protected class are inherently racist, sexist, or oppressive;
  3. Members of one protected class’s moral character or status (privileged or oppressed) is determined by their protected class;
  4. Members of one protected class should not attempt to treat others without respect to another protected class;
  5. Members of one protected class bear responsibility for or should be discriminated against or receive adverse treatment because of past actions they played no part in, committed in past by other members of same protected class;
  6. Members of one protected class should be discriminated against by virtue of their protected class to achieve diversity, equity, or inclusion;
  7. Members of one protected class bear personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions on which the individual played no part, committed in the past by another member of a protected class; and
  8. Virtues (merit, excellence, hard work, fairness, neutrality, objectivity, racial colorblindness) are racist or sexist or created to oppress other protected class members.

If the employer requires an employee to participate in training the advances any of the foregoing concepts, per the Act, it would now be considered discrimination based on race, color, sex, or national origin.

The Act also provides that employers are allowed to discuss the above concepts provided that they are discussed (1) in an objective manner and (2) without endorsement of the concepts.

What is “Woke”? Merriam Webster defines “woke” as one who is aware of and actively attentive to important facts and issues, especially issues of racial and social justice.

What is CRT? CRT is an academic concept that is more than forty years old. The core idea is that race is a social construct; racism is not merely the product of individual bias or prejudice, but also something embedded in legal systems and policies. The Theory: racism is part of everyday life, so people—white or nonwhite—who don’t intend to be racist can nevertheless make choices that fuel racism.

Criticism of the Woke Movement and CRT: Critics claim that the CRT theories advocate discrimination, particularly against white people in order to achieve equality. Examples of criticism may include “white people are inherently privileged while black people and people of color are inherently oppressed and victimized“ or “achieving racial justice and equality between racial groups requires discriminating against people based on their whiteness.”

Temporary Injunction of Stop Woke Act in the Workplace

On June 22, 2022, private employers Honeyfund, a technology company, and Primo, a Ben & Jerry’s franchise, along with diversity and inclusion HR training consultants, Orrin and Whitespace Consulting, filed a lawsuit against various governmental entities, including Florida’s Governor, Attorney General, and the Florida Commission on Human Rights (“FCHR.”) Honeyfund and Primo both planned to conduct mandatory trainings on diversity, equity, and inclusion. Honeyfund’s topics included advancing women in business, understanding institutional racism, and anti-harassment training. Primo’s topics included terms such as “dominant group,” “racial bias,” “white man’s privilege,” and “white man’s guilt,” and addressed topics such as systemic racism, oppression, and intersectionality. Orrin and Whitespace Consulting work with private employers to provide seminars and trainings on topics including historical and structural racism, unconscious bias, and diversity and inclusion in the workplace.

The plaintiffs claim that the employer provision of the Stop Woke Act violates the First Amendment by restricting speech and preventing employers from engaging in open and free exchange of information with employees. The plaintiffs seek to have the Stop Woke Act declared unconstitutional and to enjoin the defendants from enforcing the Act. They also claim that the Act is so vague and overbroad that it is impossible for employers to know how to comply and thus, it is in violation of their Fourteenth Amendment Due Process rights. The plaintiffs argue that the Act regulates speech and not unlawful employment conduct and thus falls within the realm of protections provided under the First Amendment.

The governmental defendants claim that the workplace Act was enacted to condemn eight concepts the Florida Legislature deemed antithetical to the fundamental constitutional mandate that all persons are equal before the law. The defendants argue that the First Amendment has no application because the Act regulates conduct, not speech. The Act merely says that employers cannot engage in the action of enforcing their employees to participate in certain trainings – private consultants remain free to espouse certain ideas and collect fees for doing so and employees who wish to attend these trainings remain free to do so provided that the employer does not make these trainings a mandatory condition of employment. The governmental defendants argue that based on the plain meaning of the words used in the Act, it is not vague or undefined.

Last week, Judge Walker agreed with the plaintiffs and entered a preliminary injunction preventing the FCHR and the Attorney General from taking any steps to enforce the employer provisions in the Act. In doing so, the judge made an initial determination that the Act violates free speech protections under the First Amendment and the Fourteenth Amendment’s Due Process clause because of its vagueness.

What’s Next for Employers and Educators?

The preliminary injunction will likely be immediately appealed by the governmental defendants.  This process could take up six to twelve months to get resolved. In the interim, employers should pay careful attention to the content of its training, particularly when hiring a consultant.

The American Civil Liberties Union (“ACLU”) has filed a similar lawsuit on behalf of a group of students and educators in the State of Florida as it relates to the education provisions under the Stop Woke Act. It is anticipated that a similar preliminary injunction request will be filed by the ACLU on the education part of the Act and the court could find similar problems with the education changes. Employers and consultants should keep track of these cases to insure that their training complies with the complex legal battles between the Florida Legislature and the federal courts.

RumbergerKirk’s Employment Team will continue to monitor all legislation, laws, and court rulings to help employers make informed decisions.