Following a series of stops and starts, Florida’s Individual Freedom Act (IFA), or the so-called “Stop-WOKE” law, was partially enjoined on August 18, 2022. The law, which went into effect July 1, 2022, had dramatically restricted the sorts of communications employers and educators are permitted to make concerning diversity, non-discrimination and anti-harassment. The employment component amended Florida’s state counterpart to Title VII, the Florida Civil Rights Act (FCRA), by prohibiting promotion of eight topics purportedly influenced by “critical race theory” (CRT), including institutional racism, racial bias, and gender expansiveness.
The injunction issued by Chief Judge Mark Walker prohibits the Florida Commission on Human Relations and the Florida Attorney General from enforcing the IFA’s provisions against employers. As Judge Walker warned, however, his order does not prohibit individuals from pursuing private causes of action based on the law. The defendants are expected to appeal the injunction shortly.
The Court’s Findings
In his opinion Judge Walker took note of the unusual nature of the IFA – a first-of-its-kind legislative attempt to prohibit so-called “woke” speech, which the legislative history of the law characterizes as “repugnant.” Judge Walker compared the legislation to the “upside down” – the distorted reality affecting the characters in the Netflix series “Stranger Things.” While the First Amendment of the U.S. Constitution bars a state from burdening speech, the judge said the Florida law turns “the First Amendment upside down” by regulating how private employers can provide diversity training to their employees and prohibiting speech that is unpopular to politicians currently in power.
Judge Walker rejected the State’s argument that it has a compelling interest in “preventing employers from ‘foisting speech that the State finds repugnant on a captive audience of employees.’” Instead, he embraced the century-old constitutional mantra that even if Florida finds certain speech “repugnant,” the remedy for repugnant speech “is more speech, not enforced silence.”
Judge Walker noted that, as written, the law does not prohibit only mandatory “training” but actually restricts endorsement of concepts at a training “or any other required activity,” including phone calls, assignments, and even discussions in the workplace. These restrictions are so vague, the judge concluded, that a reasonable employer cannot be expected to understand what is prohibited by the law.
Similarly, Judge Walker criticized sections of the law for being “mired in obscurity” and “bordering on unintelligible.” With respect to the provision restricting employers from endorsing the view that “[m]embers 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,” the court criticized the legislation for containing “a rarely seen triple negative, resulting in a cacophony of confusion.”
Judge Walker rejected defendants’ suggestion that “there is nothing to see here” and their argument that the IFA merely attempts to “ban race discrimination in employment.” He said it “trivializes the freedom protected” by Title VII and FCRA to suggest that a ban on discrimination and the prohibitions in the IFA are the same. He ordered that neither the FCRA nor the Florida Attorney General may attempt to enforce these prohibitions unless and until permitted by further order of the court.
Challenges to IFA
Within hours of the governor’s signing the IFA, five individuals sought to enjoin enforcement of all of its provisions and sought a declaration the IFA was unconstitutional. Falls v. DeSantis, Case No. 4:22cv166-MW/MJF (N.D. Fla.). Chief Judge Walker heard argument in that matter and, on June 27, 2022, concluded that plaintiffs in that case did not have standing to challenge the law.
Before dismissal of the Falls case, however, another lawsuit challenging IFA was filed in the same court, Honeyfund Inc. v. DeSantis, Case No. 4:22-cv-227-MW-MAF. The plaintiffs in Honeyfund include a diversity, equity and inclusion (DEI) consultant, who alleges that the consultant and the consultant’s company lost business because of the IFA prohibitions. Another plaintiff is a franchise operating in Florida that alleged it had altered plans to provide DEI trainings that expressly used terms like “dominant group,” “racial bias,” “white man’s privilege,” and “white man’s guilt,” and had planned to address topics like systemic racism, oppression and intersectionality. Another plaintiff is an employer in Florida that says it intended to provide training on advancing women in business, understanding gender expansiveness, understanding institutional racism and anti-harassment.
Honeyfund was assigned to Judge Walker and a hearing addressed arguments that the employment provisions of the IFA are unconstitutional. This resulted in the injunction issued on August 18, 2022. Prior to issuance of the injunction, a third lawsuit was filed by eight college professors challenging the portions of the IFA that apply to educational institutions. That case has also been assigned to Judge Walker.
Significance of the Ruling
Judge Walker’s order comes as a relief to Florida employers that provide DEI training. At this point there is no indication, however, that Florida will abandon its legal defense of the IFA despite Judge Walker’s thorough rejection of the State’s claims that the employment portions pass constitutional muster.
Given the entanglement of “Stop WOKE” with attacks on “critical race theory” in campaigns and political platforms during the run-up to midterm elections, however, it appears more likely that the state will take Judge Walker up on his invitation to immediately appeal the Honeyfund injunction. This scenario poses a potential déjà vu situation for Floridians. In May 2022, Judge Walker in a 288-page opinion found two Florida election laws unconstitutional only to have that opinion overturned by the Eleventh Circuit two months later. In his August 18 order, Judge Walker pre-emptively informed the parties that a request to stay his injunction pending appeal would be denied.
For now, employers in Florida that choose to continue with their DEI initiatives—as they existed prior to July 1, 2022—must do so knowing that IFA still provides a private right of action to individual employees who feel aggrieved.
The IFA empowers the attorney general to prosecute employers for violations, resulting in possible fines. It is that specific power that has been effectively enjoined. However, a private cause of action (for example, by an allegedly aggrieved employee) could be filed notwithstanding the injunction. Further, if Judge Walker’s injunction is overturned on appeal the attorney general would presumably be free to prosecute violations that occurred while it remained in effect.
An aggrieved individual must exhaust administrative remedies before filing suit. Ordinarily, this is achieved by allowing the Florida Commission on Human Relations a chance to investigate a complaint. While the FCHR is currently prohibited by the injunction from conducting such investigations (i.e., taking actions to enforce the IFA), after 180 days the FCRA allows an individual employee whose complaint submitted to the FCHR has not been investigated to go directly to court. Employers may therefore still have to defend such claims.
The “Stop WOKE” movement in Florida cannot be considered “settled” by Judge Walker’s preliminary ruling. Employers are still potentially in the crosshairs of having to understand and comply with enacted laws or face potential consequences—including costly lawsuits.
Employers that already tailored their DEI training programs or incorporated the use of an IFA-compliant “attendance waiver” for Florida-based employees in preparation for the new law, should not discard them just yet. Employers should keep them within reach because it is likely the battle over “Stop-WOKE” has not been concluded with this most recent ruling.