United States: Go Woke, Go Broke? Potential Legal Exposure For Florida Diversity Training Starts July 1

The "Stop WOKE Act" (HB7) (the "Act") is set to go into effect on July 1, 2022, following a court decision this week declining to enter an injunction to halt the Act. The Act, among other things, restricts employers from requiring diversity training that "espouses, promotes, advances, inculcates, or compels [employees] to believe" certain prohibited concepts related to race, color, sex or national origin. In a previous Legal Alert, we summarized the Act and provided insight into what this new law will mean for employers. While Florida's law is the first of its kind, there is speculation that other states could adopt similar legislation in the future.

Will the Stop WOKE Act Actually Go Into Effect on July 1?

It appears the Act will take effect July 1, 2022. Although a challenge to the law has been filed in the case of Falls, et al. v. DeSantis, et al., on June 27, 2022, a federal judge in the North District of Florida denied the request for a preliminary injunction from three of the plaintiffs, holding that they had not sufficiently shown that they are likely to establish standing for purposes of being entitled to a preliminary injunction to stop the Act from going into effect. The court did not rule on the injunction request of a fourth plaintiff, a University of Central Florida professor, and instead ordered the parties to submit additional briefs on whether a proposed rule directing how universities should carry out the law could affect that plaintiff's standing.

The court also did not rule on the substance of the challenges to the Act's constitutionality, leaving open the potential for additional lawsuits challenging the Act. Judge Mark E. Walker (Chief Judge of the Northern District of Florida, appointed by President Obama in 2012) specifically noted that the court "is not determining whether the challenged regulations are constitutional, morally correct, or good policy."

Critics of the Act argue that employers are entitled to exercise their right to free expression under the First Amendment of the U.S. Constitution and that the Act unlawfully restricts that right.

While Judge Walker denied injunctive relief for most of the plaintiffs in the Falls case, he ended his decision with a quote from a landmark 1943 U.S. Supreme Court case (involving First Amendment rights as applied to the classroom), which he suggested was an observation intended for "those who applaud state suppression of ideas that the government finds displeasing." The quote from that U.S. Supreme Court decision ends with an ominous prediction: "'Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.'" See Judge Walker's Order Denying Preliminary Injunction In Part (Jun. 27, 2022) at p. 22, quoting West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) (holding that the First Amendment prevents students in public schools with religious objections from being forced to salute the American flag and recite the Pledge of Allegiance).

A new lawsuit also challenging the Stop WOKE Act was filed in the U.S. District Court for the Northern District of Florida on June 22, 2022, Case No. 4:22-cv-227. The plaintiffs in that case include a technology company, a diversity, equity, inclusion, and justice ("DEIJ") consultant, and a DEIJ consulting corporation. This case challenges the constitutionality of the Stop WOKE Act under the First and Fourteenth Amendments, arguing that the Act impermissibly constrains the rights of Florida private employers and DEIJ consultants. While the lawsuit purports to seek injunctive relief to prevent the state from enforcing the Act, as of the date of this alert, no hearing has been set to address this request.

What Resources Are Available to Help Ensure Compliance?

When the Stop WOKE Act goes into effect on July 1, employers should ensure that their diversity, equity, and inclusion training materials are compliant with the new law. Failure to comply could lead to bad publicity, discrimination charges and costly litigation. Implementation of the Stop WOKE Act does not mean that Florida employers should stop all diversity trainings altogether. Failure to educate employees about how to create a more inclusive workforce comes with a different set of legal risks.

In the absence of specific guidance by the Florida Legislature, FordHarrison has provided answers to FAQs about the Stop WOKE Act. Reviewing, providing input, and delivering diversity, equity, and inclusion training that we believe is compliant with Florida law are simply a few of the resources FordHarrison can provide to your team. Our firm continues to lead national and global employers to the forefront of Diversity, Equity and Inclusion, and we can meet your needs while providing the essential legal guardrails.

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