On September 16, 2022, The Governor and Attorney General of the State of Florida filed a Notice of Appeal challenging the decision by U.S. District Judge Mark E. Walker to issue a preliminary injunction blocking part of Florida’s House Bill (H.B.) 7, known as the Individual Freedom Act (IFA) or, as the Governor has referred to it – the “Stop W.O.K.E. Act” (Stop the Wrongs to Our Kids and Employees).
The IFA expands Florida Statutes § 760.10 to prohibit employers from mandating that employees undergo training “that espouses, promotes, advances, inculcates, or compels” employees to believe any of eight enumerated concepts relating to sex and race. For example, the IFA would prohibit employers from providing training that promotes the idea that “[a]n individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.”[1]
The law, which went into effect on July 1, 2022, was challenged by Florida employers and certain providers of employer training. On August 18, 2022, Judge Walker issued a preliminary injunction blocking the law on First Amendment grounds. Referencing the popular television series Stranger Things, Judge Walker noted in the decision that “Florida has seemed like a First Amendment upside down.”
In particular, the Court took issue with the fact that the while the IFA prohibits employers from promoting the eight concepts, it does not ban employers from addressing them – “provided such training or instruction is given in an objective manner without endorsement of the concepts.” Thus, Judge Walker held, that the law places a “viewpoint-based restriction on speech.” The Court continued that “[b]ecause the IFA targets only those viewpoints with which the State disagrees… [it] triggers strict scrutiny as a viewpoint-based restriction on speech.”
The Court further found that the IFA is “impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment.” Specifically, Judge Walker took issue with the first concept – that “[m]embers of one race, color, sex, or national origin are morally superior to members of another….” – which he stated “is mired in obscurity.” In describing the “confusion” over the meaning of “morally superior,” Judge Walker commented that “[i]t is not clear what is prohibited [by this concept] beyond literally espousing that, for example, ‘White people are superior to Black people.’”
In any event, while employers can hold-off on rewriting their training programs for now, it appears that Florida is poised to venture deeper into the “upside down.” We will continue to monitor this matter and will report any developments in the litigation.
[1] The IFA would also prohibit employers from promoting the following concepts:
- Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
- An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
- 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.
- Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin. § 760.10(8), Fla. Stat.
