You may recall that in 2021 the State of Florida, in a much-publicized move, passed a law called the “Stop W.O.K.E. Act,” which banned Florida employers from mandating employee attendance to any training or instruction that “espouses, promotes, advances, inculcates, or compels” a certain set of beliefs regarding the treatment of individuals based on race, color, sex, or national origin. The law did not stop training on the general subject of protected classes, but instead any discussion that “endorses” ideas that a certain race is either morally superior to another or is inherently discriminated against. The law did not prohibit mandatory trainings that promoted other types of ideas not included in the list. The law also didn’t bar voluntary attendance at these type trainings – only policies that made it mandatory.

The Greatest First Amendment Sin

Two companies sued the state of Florida because they wanted to mandate employee training that they said would highlight “diversity, equity and inclusion” values. The companies said that the Florida law stopped them from sharing their viewpoints with their employees. A court granted a preliminary injunction against enforcement of the law stating that it was both unconstitutionally vague and “an unlawful content-and viewpoint-based speech restriction” under the First Amendment to the Constitution. The State of Florida appealed to the Eleventh Circuit.

The 11^th Circuit listed all the types of training that the law prohibited, recognizing that those ideas “are embraced in some communities, and despised in others.” By prohibiting training regarding only certain types of ideas, the court stated that the act “targets speech based on its conduct.” By penalizing certain viewpoints, the Florida law commits “the greatest First Amendment sin.”

The State of Florida argued that by banning attendance at the mandatory workplace trainings, it was regulating conduct, not speech. The law banned only mandatory meetings where those ideas were taught. The 11^th Circuit responded that since the prohibition was attached to the content of the speech at the training, the only way to figure out if the training was prohibited was to find out “whether the speaker disagrees with Florida.” That, in the words of the court “is a classic—and disallowed—regulation of speech.”

Florida also argued that the discrimination prohibition found in Title VII also regulated speech and therefore must be unconstitutional. The 11^th Circuit did not buy it. The court pointed out that while Title VII may have an incidental effect on speech, “it is not directed at it” like the Florida law.

The court’s opinion ended with the following quote from the United States Supreme Court: 

“The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” 

The 11^th Circuit went on to hold that because the Florida law’s mandatory-meeting provision “undermines that basic principle,” it must be enjoined as unconstitutional.

To Meet or Not to Meet?

If you are a Florida employer, this decision enables you to require meetings and/or training of your employees on the law’s “restricted areas.” You are not required to provide the training but can if you want to. Diversity, equality and inclusion programs are embraced in some communities and are controversial in others. The court’s decision means that as an employer in the 11^th Circuit footprint (Florida, Georgia, Alabama), you can make the call for your workforce.