Lechner Law

On March 4, 2024, the Eleventh Circuit held that the provisions of the Florida’s “Stop W.O.K.E. Act” that applied to employers are unconstitutional: “By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.” https://media.ca11.uscourts.gov/opinions/pub/files/202213135.pdf

By way of background, many employers have adopted diversity, equity and inclusion (“DEI”) training as a way to address disparities in workplace culture. The 2022 amendments to the Florida Civil Rights Act (“FCRA”), which took effect July 1, 2022, limited employers’ ability to implement certain types of workplace DEI training.

The amendments – part of the Stop W.O.K.E. Act – expanded Fla. Stat. § 760.10 to provide that subjecting a person as “a condition of employment, membership, certification, licensing, credentialing, or passing an examination” to “training, instruction, or any other required activity” that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts “constitutes discrimination based on race, color, sex, or national origin” under the FCRA:

• 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.

            However, the bill specified that it does not prohibit discussion of these concepts as part of a course of training or instruction given in “an objective manner” without endorsement of such concepts.

Background

            The precursor to the 2022 FCRA amendments was Executive Order No. 13,950, issued by President Trump on September 22, 2020. EO 13950 forbade federal contractors from using DEI training that promoted or endorsed “divisive race and gender concepts,” including any workplace training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”^[1] “Race or sex stereotyping” was defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” “Race or sex scapegoating” was defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex” and also encompassed “any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

            The perceived evil EO 13950 said it was designed to confront was the:

destructive ideology … grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

            In other words, EO 13950 targeted teaching of so-called “critical race theory” and “gender theory,” concepts upon which DEI training is often based.       According to EO 13950, these “ideologies” “are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.” EO 13950 expressed fear that these “ideologies” are:

now migrating from the fringes of American society and threaten[] to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country….

            When Governor Ron DeSantis signed the Stop W.O.K.E. Act into law in 2022, he similarly expressed: “We believe an important component of freedom in the state of Florida is the freedom from having oppressive ideologies imposed upon you without your consent, whether it be in the classroom, or whether it be in the workplace.”    

First Amendment

            The Eleventh Circuit clearly expressed that the 2022 amendments to the FCRA do not pass muster under the First Amendment. On January 25, 2021, President Biden revoked President Trump’s Executive Order,^[2]  but one month prior a federal district court on December 22, 2020 found that it likely violated the First Amendment and imposed a nationwide preliminary injunction due to the impermissible reach of EO 13950 on contractors’ “freedom to deliver the diversity training and advocacy that they deem necessary to train their own employees….”^[3] The court concluded that, under the Pickering^[4] balancing test, “the at-issue training qualified as speech on a matter of public concern for which the government does not have adequate justification to suppress….”^[5] The court also found the Executive Order void for vagueness.

            On April 22, 2022, a lawsuit was filed in the Northern District of Florida challenging – on First Amendment and void for vagueness grounds – the constitutionality of the 2022 Stop W.O.K.E. amendments to the FCRA.^[6] The suit contended that the amendments “unlawfully restrict [employers’ free speech rights] as they are not narrowly tailored to meet a compelling state interest” and “constitute viewpoint discrimination as they are explicitly designed to target and suppress ideas with which GOP lawmakers disagree.”^[7] In R.A.V. v. St. Paul,^[8] the U.S. Supreme Court recognized that an ordinance that singled out particular, content-based viewpoints violated the First Amendment where it was not narrowly tailored to achieve a compelling governmental interest.

            The Eleventh Circuit held that the 2022 Stop W.O.K.E. amendments to the FCRA singled out particular, content-based viewpoints relating to race and gender because they expressly target certain “oppressive ideologies” while permitting the teaching of other “ideologies” relating to race and gender. In doing so, the court may have departed from a line of cases that have been less protective of employers’ free speech rights in the workplace. In Booth v. Pasco County, Fla.,^[9] the Eleventh Circuit expressed that, in the hostile work environment context, restrictions on employers’ speech “should be understood as consistent with general First Amendment standards because the speech in such cases is not a matter of public concern, and does more than cause mere emotional distress—it invades a legally cognizable interest of the employee that arises from the employment setting.”

            In Avis Rent-a-Car System v. Aguilar,^[10] the Supreme Court declined to review a ruling by the California Supreme Court allowing an injunction prohibiting an employee from uttering derogatory remarks about Latino co-employees. The California Supreme Court held that the injunction did not violate the First Amendment in part because the use of such epithets would contribute to the continuation of a hostile work environment and, therefore, would constitute employment discrimination. In Robinson v. Jacksonville Shipyards, Inc.,^[11] the Middle District of Florida likewise held that certain workplace speech and pictures “are not protected speech because they act as discriminatory conduct in the form of a hostile work environment.”

            The Robinson court further ruled that “the regulation of discriminatory speech in the workplace constitutes nothing more than a time, place, and manner regulation of speech,” and therefore this type of regulation merely “requires a legitimate governmental interest unrelated to the suppression of speech, content neutrality, and a tailoring of the means to accomplish this interest.” The court then explained that “[t]he eradication of workplace discrimination is more than simply a legitimate governmental interest, it is a compelling governmental interest.” Finally, the Robinson court concluded that employees in the workplace “are a captive audience … [and] [t]he free speech guarantee admits great latitude in protecting captive audiences from offensive speech.” One could reasonably conclude that an employee who is required to receive training or instruction as “a condition of employment, membership, certification, licensing, credentialing, or passing an examination,” is a captive audience.

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[1] Exec. Order No. 13950, 85 Fed. Reg. 60,683 (Sept. 22, 2020).

[2] Exec. Order No. 13,985, 86 Fed. Reg. 7,009 (Jan. 25, 2021).

[3] Santa Cruz Lesbian and Gay Community Center, et al, v Donald J. Trump, et al., No. 5:2020cv07741 (N.D. Cal. Dec. 22, 2020).

[4] Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568 (1968).

[5] The parties did not agree that the Pickering balancing test was the appropriate standard.

[6] Falls, et al. v. DeSantis, et al., No. 4:22-cv-00166-MW-MJF (N.D. Fla.).

[7] The hearing on Plaintiffs’ motion for preliminary injunction is set for Tuesday, June 21, 2022.

[8] 505 U.S. 377 (1992).

[9] 757 F. 3d 1198, 1216 (11th Cir. 2014) (citation and internal marks omitted).

[10] 529 U.S. 1138 (2000).

[11] 760 F. Supp. 1486 (M.D. Fla. 1991).