Diversity, Equity and Inclusion Training Less Burdened – For Now…
In a recent preliminary injunction comparing Florida’s First Amendment views to the “upside down” parallel dimension in the television series Stranger Things, a federal district court in Florida temporarily prevented enforcement against employers of the Information Freedom Act (“IFA”) (dubbed as The Stop the Wrongs to Our Kids and Employees (WOKE) Act). Honeyfund.com, Inc. v. DeSantis, Case No. 4:22cv227, Doc. 55 (N.D. Fla. Aug. 18, 2022).
Basics of the IFA
The IFA, which became effective on July 1, 2022, amended the Florida Civil Rights Act by expanding the definition of unlawful employment practice to include requiring employees to attend any training, instruction, or any other activity that “espouses, promotes, advances, inculcates, or compels” an employee to believe any of 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 the individual’s race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- An individual’s moral character or status as either privileged or oppressed is necessarily determined by the individual’s race, color, sex, or national origin.
- Members of one race, color, sex, or national origin cannot and should not try to treat others without respect to race, color, sex, or national origin.
- An individual, by virtue of the individual’s race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, action committed in the past by other members of the same race, color, sex, or national origin.
- An individual, by virtue of the individual’s 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 the individual’s race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other 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.
The Impact of the Injunction on the IFA
Quoting the United States Supreme Court, the district court noted, “The State may not burden the speech of others in order to tilt public debate in a preferred direction.” Noting that the IFA bans activities endorsing specific concepts (including but not limited to trainings, phone calls, assignments, discussions), the district court held such speech regulation is an unconstitutional violation of the First Amendment.
The district court also held the IFA’s impermissibly vague language–-including the carveout for objective discussion–a violation of the Due Process Clause of the Fourteenth Amendment. For example, it is unclear whether the fourth statutorily prohibited concept –which contains a confusing triple negative– bans affirmative action, diversity, or sexual harassment training on how to treat individuals of another sex or whether employers may acknowledge their employees’ differing cultural backgrounds.
Considerations for Employers
While the preliminary injunction is in place, the State may not enforce the IFA. The State has indicated it will appeal the preliminary injunction.
The preliminary injunction is welcome news to employers who are interested in conducting required diversity, equity, or inclusion (DEI) training as well as other actions to support related goals. Employers may feel more comfortable discussing difficult topics and historical actions it would like to overcome or not repeat.
Notwithstanding the preliminary injunction, the Florida Civil Rights Act and other federal and local laws prohibit discrimination, including harassment, based on various characteristics, so employers would be wise to seek guidance from employment counsel prior to conducting DEI training, revising employee handbooks, or engaging in related discussions.