Why a judge put the brakes on Florida’s Stop WOKE Act

A Florida law prohibiting required work activities that promote certain concepts related to race, color, sex or national origin is a “naked viewpoint-based regulation on speech” in violation of the First Amendment guarantee of free speech, a federal judge held Thursday (Honeyfund.com, Inc. v. DeSantis, No. 4:22-cv-00227 (N.D. Fla. Aug. 18, 2022)).

Florida district court Judge Mark E. Walker’s ruling placed a preliminary injunction on H.B. 7, a state law that supporters also have referred to as the Stop the Wrongs to Our Kids and Employees Act, or Stop WOKE Act. Separately, Walker denied state officials’ motion to dismiss the suit. Plaintiffs in the case include employers that wish to mandate training prohibited by the Act and a diversity and inclusion consultant who provides such training.

The case leading to the injunction is separate from a lawsuit filed last week by seven professors and a college student at Florida public institutions, who argued the Stop WOKE Act infringes on free speech rights while discriminating against Black students and instructors.

Florida’s law outlines a list of eight concepts that employers may not promote as part of an activity that is considered a condition of employment, including but not limited to stating that:

• Members of one race, color, sex or national origin are morally superior to members of another race, color, sex or national origin.
• 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.
• 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.

Employers may not promote these concepts, per the law, but they may discuss the concepts as part of a course of training or instruction, provided that this training or instruction “is given in an objective matter without endorsement of the concepts.”

Plaintiffs, however, argued that the Stop WOKE Act’s provisions contained undefined terms that were so vague that plaintiffs could not determine what speech the law prohibited. The judge agreed.

“With no guidance on the line between ‘objective discussion’ and ‘endorsement’ or what those poles mean, Plaintiffs will self-censor their speech,” Walker wrote. “Therefore, Plaintiffs claim that the [Act] both fails to provide fair notice of what is prohibited and ‘is so imprecise that discriminatory enforcement is a real possibility.’”

The ruling adds a wrinkle to Florida officials’ plans to enforce a law that could impact a range of diversity, equity and inclusion training initiatives. Management-side attorneys and consultants previously told HR Dive that the act may cause some organizations to either halt or roll back planned training programs.

Florida’s effort to pass the Stop WOKE Act followed similar attempts by the Trump administration to nix federal agency training that focused on concepts such as critical race theory and white privilege. The Biden administration would later revoke the prior administration’s executive order placing limits on DEI training.