U.S. District Court Denies Preliminary Injunction Against Florida 'Stop WOKE' Law

By Jim Paretti, Nancy A. Johnson, and Cindy-Ann L. Thomas © Littler July 7, 2022
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​On June 27, the U.S. District Court for the Northern District of Florida denied a request to enjoin the provisions of Florida HB 7, named the Individual Freedom Act, or the so-called "Stop WOKE" law (the state's acronym for "Stop Wrongs to Our Kids and Employees"), which dramatically limits what and how employers can communicate to employees in workplace training relating to diversity, non-discrimination, and non-harassment. 

The law went into effect on July 1. At least for now, the court's decision means that an employer's diversity, equity and inclusion (DEI) training materials must refrain from sending any messaging to employees that could be construed as requiring employees to believe in concepts like privilege, oppression, and inherent biases that are based on race, color, national origin or sex.

Almost immediately after the law was signed, five individuals, including three teachers, a student, and a consultant who provides DEI training to employers, filed a lawsuit in the Northern District of Florida seeking a preliminary injunction against it.

The plaintiffs claim that the law violates free speech rights of Florida employers and educators, and that key provisions of the new law are unconstitutionally vague and overbroad when they impose sweeping general principles with which Florida employers are required to conform or with which they are prohibited to disagree.

The law makes it illegal for any covered employer to subject any individual working in Florida, as a condition of employment, to training or instruction that espouses or promotes such individual to believe that certain concepts constitute discrimination based on race, color, sex, or national origin.

Judge Walker's Decision

The court's decision tabled plaintiffs' substantive arguments. Judge Mark Walker avoided ruling on the constitutional questions raised as to whether law's provisions were unconstitutionally vague or violated free speech protections.

Instead, Judge Walker found that the plaintiff challenging the employment provisions of the law, a consultant who provides workplace training on diversity and inclusion, did not present evidence of standing. The court found that her relationship as a consultant to employers does not give her standing to complain of their potential injury from the law. 

The plaintiff also argued injury because her business opportunities will diminish if employers cannot provide such training. Judge Walker determined that she did not present evidence that she actually lost any clients, that any clients told her that they would no longer hire her, or that any client has expressed trepidation about hiring her. 

Without standing to challenge the law, Judge Walker concluded that he was unable go any further in his analysis of the constitutional arguments presented.

He commented that "this court is not determining whether the challenged regulations are constitutional, morally correct, or good policy. And this order should not be interpreted as endorsing the law or the related Board of Education regulation."

He remarked that nothing prevents employers from raising the arguments raised by the plaintiff on their own behalf, specifically referring to another lawsuit that was filed recently.

Second Lawsuit

On June 22, a second lawsuit to block the "Stop WOKE" Act was filed in district court by Honeyfund.com, a Clearwater-based honeymoon registry company, which alleged its plan to provide certain DEI training to its employees in Florida appears to violate the law. This lawsuit is joined by another DEI consultant and a corporation that works with other companies to provide DEI trainings.

Immediately after filing their lawsuit, the plaintiffs in this case filed a notice of related matters, reflecting that their arguments largely mirror those raised by the plaintiff in the first challenge to the law.

Perhaps anticipating Judge Walker's ruling, the Honeyfund.com lawsuit is poised to fix the standing issue identified by Judge Walker and perhaps return the issue to his court to await a substantive decision on the constitutional challenges that he skirted in his opinion.  

Going Forward

It is likely that the court's decision will be appealed to the U.S. Circuit Court of Appeals for the Eleventh Circuit, which may uphold, reverse, or modify the lower court's decision.

Given the uncertainty as to the ultimate fate of the law, Florida employers with operations and/or employees in Florida should consider placing a strategic pause on mandatory training while they coordinate plans to take preparatory action to comply with the Act.

Florida employers that conduct DEI, unconscious bias, or respect at work trainings should consult with counsel as to the content, scope, and facilitation practices of such trainings and any related workplace DEI policies to ensure that they are compliant with the law.

Multistate employers with Florida operations should be mindful that a broad, companywide approach to trainings on these topics could inadvertently result in legal violations and damages.

By Jim Paretti is an attorney for Littler in Washington, D.C. Nancy A. Johnson is an attorney for Littler in Orlando, Florida. Cindy-Ann L. Thomas is an attorney for Littler in Charlotte, N.C. ©2022. All rights reserved. Reprinted with permission. 

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