DeSantis ‘Anti-Woke’ Diversity Training Law Faces 11th Cir. Test

A Florida law restricting businesses’ ability to conduct diversity training on concepts such as implicit bias will face a critical test this week as a federal appeals court in Atlanta considers whether the measure violates the First Amendment’s free speech protections.

The state’s 2022 law, HB 7, which Gov. Ron DeSantis (R) championed and initially named the “Stop WOKE Act,” has been partially blocked from taking effect since a federal district court issued a pair of injunctions last year. That lower court found aspects of the law were likely unconstitutional.

Now a conservative-leaning panel of the US Court of Appeals for the Eleventh Circuit will hear oral arguments Thursday on whether to overturn the injunction related to workplace diversity training and let those restrictions take effect. The state’s attorneys argue the law doesn’t infringe on free speech, but only regulates conduct—specifically, banning businesses from requiring employees to attend meetings where the restricted concepts are taught.

Florida’s legislation came as part of a wave of state laws blocking schools and universities from teaching critical race theory and other concepts that some Republican lawmakers have decried as “woke.” The Florida measure imposed restrictions on schools and universities, but went a step further by also regulating workplace diversity training by private-sector employers.

“There was so much vagueness in the way it was worded, it would have made it very difficult to comply without spending a lot of money on attorneys to scrutinize every training we held,” said Sara Margulis, CEO and cofounder of Honeyfund.com, the Florida-based wedding gift registry business that sued to block the law alongside other employers. “The prohibited concepts were basically things the state didn’t agree with.”

The company, which won a high-profile investment through the TV show “Shark Tank” in 2014, conducted its first diversity training as part of an annual company retreat in November 2022 for its roughly 25 employees, Margulis said. She said she is planning another this November.

“We have a diverse client base, being in the wedding industry,” and felt the employees should have training on issues such as systemic racism and implicit bias, she said, “to better understand the lived experience of our customers.”

Speech or Conduct Limits?

The language of HB 7 prohibits espousing eight specific concepts, including that members of one race or sex are inherently racist or sexist, that a person’s status as either privileged or oppressed is determined by their race or sex, and that a person should feel guilt over the past actions of other people who share their same race or sex.

The Florida legislature added the restrictions to the state’s anti-discrimination laws, and provided that employees or students who are subjected to violations could file complaints with the state’s civil rights agency.

The workplace training restrictions as well as HB 7’s limits on race- and gender-related instruction in university classrooms were blocked in August and November 2022, respectively, when US District Judge Mark Walker in Tallahassee granted injunctions against them. Walker, who has a track record of ruling against Republican-backed policies, wrote that the restrictions were “dystopian” and reminiscent of life in the “upside down” in the Netflix series “Stranger Things.”

The Eleventh Circuit judges scheduled to hear the appeal are Charles R. Wilson, a Bill Clinton appointee, and two judges appointed by Donald Trump, Britt C. Grant and Andrew L. Brasher.

The state is appealing the injunction related to university instruction restrictions in a separate case.

The state’s attorneys are slated to argue on Thursday that the court should uphold HB 7, which the legislature officially named the Individual Freedom Act, and reject the claims that it violates the 14th Amendment for being overly vague and the First Amendment for infringing free speech.

The “Individual Freedom Act does not implicate the First Amendment at all, because it does not regulate the speech that goes on at workplace training events, but instead the employer’s conduct of requiring its employees to attend those events and penalizing those who fail to do so,” Charles J. Cooper of Cooper & Kirk PLLC in Washington wrote in the state’s Feb. 22 reply brief.

Courts have held that the First Amendment doesn’t prevent governments from looking to speech to determine whether there’s conduct that violates the law, such as in federal hostile work environment claims brought under Title VII of the 1964 Civil Rights Act, he said.

But the plaintiffs argue the nature of HB 7’s restrictions are clearly targeting specific types of speech that Florida’s Republican leaders dislike.

“Our argument is that it’s a viewpoint-based restriction the government is trying to impose,” which would violate the First Amendment, said Shalini Goel Agarwal, an attorney with the nonprofit legal and advocacy group Protect Democracy, who’s representing the plaintiffs.

It’s also unclear how employers could conduct diversity training in a way that wouldn’t potentially violate HB 7, she told Bloomberg Law in an interview.

“The result is a chill on employer speech,” Agarwal said. “Employers are going to stay far, far away from talking about race and gender and disparities between these groups.”

Ropes & Gray LLP is representing the plaintiffs alongside Protect Democracy.

The Florida attorney general’s office is representing the state defendants alongside Cooper & Kirk.

The case is Honeyfund.com Inc. v. Governor, State of Fla., 11th Cir., No. 22-13135, oral arguments scheduled 8/24/23