The Eleventh Circuit Court of Appeals recently upheld a decision blocking Florida from prohibiting employers from conducting mandatory workplace DEI training under its Stop WOKE Act, a/k/a Individual Freedom Act, Fla. Stat. § 760.10(8)(a).  In Inc. v. Governor, No. 22-13135, 2024 WL 909379, at *1. (11th Cir. Mar. 4, 2024), the Court issued an opinion staunchly supporting the First Amendment and squarely rejecting Florida’s attempt to regulate certain viewpoints:   

This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.

The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.

The specific provision at issue sought to prohibit employers from subjecting “any individual, as a condition of employment,” to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” a certain set of beliefs.  Id.  The law enumerates those prohibited viewpoints, which all relate to race, color, sex, or national origin, but also permits training that endorses the viewpoints of Florida’s current administration.  This, the Eleventh Circuit determined. “is an illegal per se ban on speech the state disagrees with.”  Id. at *8.  

The Court applied strict scrutiny, the most stringent and “exacting standard,” because the Act includes both content- and viewpoint-based speech.  Florida bore the burden of showing that the Stop WOKE Act was “narrowly tailed to serve a compelling state interest” in the “least restrictive way” to achieve a stated purpose.  Id. at *6.  That it failed to do, at least for this particular provision.  The Act also targets and prohibits public-school instruction that aims to “indoctrinate or persuade students to a particular point of view inconsistent with” certain principles, but that provision was not the subject of the appeal.

What does this mean for employers?  Certainly, employes can and should feel free to promote equity and inclusion as part of their training and other policies.  Hopefully, other states that may have an interest in mimicking Florida’s Stop WOKE Act will think again in light of this decision.  However, employers should still be mindful of the content of their DEI training and consult with counsel where necessary to make sure they are following best practices and mitigating any potential risk.