Florida’s ‘Stop WOKE’ restricts businesses from training on some race-related issues; a court will hear a challenge

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — A federal appeals court this week will hear arguments in a fight about a 2022 Florida law that placed restrictions on how race-related issues can be addressed in workplace training — part of what Gov. Ron DeSantis dubbed the “Stop WOKE Act.”

Attorneys for the state want the 11th U.S. Circuit Court of Appeals to overturn a preliminary injunction that Chief U.S. District Judge Mark Walker issued last year to block the workplace-training part of the law. Walker agreed with businesses and a consultant that the restrictions violated the First Amendment.

While the law also placed restrictions on how race-related issues can be addressed in the state education system, the appeal only deals with the part focused on workplace training. That part lists eight race-related concepts and says that a required training program or other activity that “espouses, promotes, advances, inculcates, or compels such individual (an employee) to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin.”

As an example of the concepts, the law targets compelling employees to believe that 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.”

In court documents, the state disputed that the law violates speech rights, saying that it regulates “conduct.” It said businesses could still address the targeted concepts in workplace training — but couldn’t force employees to take part.

“Plaintiffs’ First Amendment challenge to the employment provisions collapses in the starting gates because these provisions do not regulate speech,” attorneys for the state wrote in a November brief at the Atlanta-based appeals court. “Rather, the employment provisions regulate pure conduct: an employer’s nonexpressive, commercial action of imposing ‘a condition of employment’ that requires its employees to attend, on pain of termination or other sanction, certain instruction or training activities. Defendants do not dispute that the instruction and discussion that occurs during workplace training sessions constitutes speech. But that speech remains as free and unrestrained as it was before the passage of the act; all the act says is that employers cannot engage in the action of forcing their employees to attend such sessions and sanctioning them if they disobey.”

But in arguing the appeals court should uphold the injunction, attorneys for the plaintiffs called the law “textbook viewpoint discrimination” and said it “only forbids certain speech at mandatory trainings.”

“An employer may with impunity require, on pain of termination, that employees attend mandatory sessions lambasting ‘WOKE’ concepts like ‘structural racism,’ ‘white privilege,’ or ‘restorative justice,’” the plaintiffs’ attorneys wrote in a January brief. “As long as the employer espouses the state’s party-line, she is fine. It is only if the employer strays from that message during these required activities that she is subject to punishment. This is the stuff of autocrats and totalitarian regimes; it is antithetical to the most fundamental values of a democracy, as enshrined in the First Amendment.”

In granting the preliminary injunction last year, Walker also disputed the state’s arguments that the law only regulates conduct.

“If Florida truly believes we live in a post-racial society, then let it make its case,” Walker wrote. “But it cannot win the argument by muzzling its opponents. Because, without justification, the (law) attacks ideas, not conduct, Plaintiffs are substantially likely to succeed on the merits of this lawsuit.”

A panel of the appeals court will hear arguments Thursday in Atlanta. The plaintiffs are Primo Tampa, LLC, a Ben & Jerry’s ice-cream franchisee; Honeyfund.com, Inc., a Clearwater-based technology company that provides wedding registries; and Chevara Orrin and her company, Collective Concepts, LLC. Orrin and her company provide consulting and training to employers about issues such as diversity, equity and inclusion.

DeSantis, who is running for the Republican presidential nomination, has made a high-profile political issue of targeting such things as diversity, equity and inclusion programs. He called the 2022 law the “Stop Wrongs To Our Kids and Employees Act,” or Stop WOKE Act.

Walker also issued a preliminary injunction against part of the law that would restrict the way race-related concepts can be taught in universities. The state has appealed that decision, though the appeals court has not scheduled arguments.