Earlier this month, the U.S. Court of Appeals for the Eleventh Circuit blocked the enforcement of Florida’s Individual Freedom Act, informally known as the Stop WOKE (Wrongs to Our Kids and Employees) Act. The law, among other things, prohibits mandated employee training sessions that promote certain concepts related to race, color, national origin, or sex that state legislatures believe to be discriminatory or offensive. 

Examples of such prohibited concepts include, according to the act, "a person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex" and "members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.”

Law360 summarized the freedom of speech arguments at play: “During oral arguments in August, Florida's counsel argued that the law doesn't violate the First Amendment because businesses are free to discuss the ideas and advocate for them outside of mandatory training sessions, as the law is narrowly targeted at banning the meetings rather than what's being said. But the appeals judges rejected the state's assertion, with U.S. Circuit Judge Britt C. Grant writing for the panel Monday that the only way to find out which mandatory trainings are prohibited is to figure out whether a presenter disagrees with Florida, which ‘is a classic – and disallowed – regulation of speech.’” 

Judge Grant also wrote that by prohibiting specific points of view that the state has “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.” 

According to Law360, Florida is looking into options to appeal the Eleventh Circuit's decision.

This case, as well as the U.S. Supreme Court's decision ending race-conscious affirmative action in higher education, shine a light on the changing legal landscape for employer diversity, equity and inclusion (DEI) initiatives. Employers are encouraged to review their policies to ensure their DEI programs are legally sound should they be challenged.