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On March 4, 2024, the 11th U.S. Circuit Court of Appeals upheld the temporary block on Florida’s Individual Freedom Act, better known as the “Stop WOKE Act.” Employers implementing diversity, equity, and inclusion (DEI) programs should be aware of the impact of this ruling, as well as the developments in the underlying case.

Background on the Stop WOKE Act

Among other things, the Stop WOKE Act bars employers from holding mandatory, as opposed to voluntary, meetings endorsing certain ideas enumerated in the Act, such as teaching that an individual’s “moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.” An employee forced to sit through such training may bring a private action for discrimination against the employer.

Lower Court Blocks Act

Since its passing in 2022, the Act has generated controversy. Almost immediately, two employers and a training company challenged its constitutionality. They argued the Act violates the First Amendment by unlawfully restricting speech. The Northern District of Florida agreed and granted an injunction to block enforcement of the Act. The State of Florida appealed that injunction to the 11th Circuit Court of Appeals.

Court of Appeals Affirms Lower Court’s Ruling That Act Appears to be Unconstitutional

On March 4, the Court of Appeals affirmed the lower court’s ruling and upheld the injunction. In its opinion, the Court of Appeals denounced the Act for penalizing viewpoints considered offensive by the government—the “greatest First Amendment sin.”

The three-judge panel unanimously rejected Florida’s attempt to characterize the Act as restricting conduct (which the government has broad authority to regulate) rather than speech. The “fact that only mandatory meetings that convey a particular message and viewpoint are prohibited makes quick work of Florida’s conduct-not-speech defense.”

The Court also rejected the argument that the Act protects employees from discrimination caused by the prohibited teachings. The Court stated that Florida “has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory.” The Court reasoned that even if Florida is “right” and these ideas should be verboten, “the merits of these views” should be “decided in the clanging marketplace of ideas rather than a codebook or a courtroom.” “No government can ‘shut off discourse solely to protect others from hearing it.’ Instead, ‘in public debate we must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment’.”

The State of Florida has reportedly indicated an intent to appeal to the U.S. Supreme Court.

What Does This Mean for Florida Employers?

This ruling has practical significance for employers. The success of legal challenges to programs like affirmative action has led many employers to scale back or alter their DEI initiatives. Employers should continue to be mindful of the content and implementation of their programs. Our attorneys are available and ready to counsel employers on the development and implementation of legally compliant DEI programs in the workplace.