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Judge Blocks Florida Race ‘Guilt’ Training Ban for Employers (2)

Aug. 18, 2022, 7:44 PMUpdated: Aug. 18, 2022, 8:42 PM

A Florida law restricting workplace bias or diversity training violates the First Amendment and can’t be enforced, a federal judge ruled Thursday.

The preliminary injunction granted by Chief Judge Mark Walker of the US District Court for the Northern District of Florida doesn’t address application of the law (H.B. 7) in Florida schools. A group of students and educators represented by the ACLU filed a separate federal lawsuit Thursday challenging the law.

“If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents,” Walker wrote. “Because, without justification, (the law) attacks ideas, not conduct, Plaintiffs are substantially likely to succeed on the merits of this lawsuit.”

Walker compared Florida to the “upside down,” the parallel and distorted reality threatening the characters in the Netflix series “Stranger Things.” The First Amendment bars the state from burdening speech, but Florida officials have barred private actors from burdening speech, he said.

“Recently, Florida has seemed like a First Amendment upside down,” he wrote. “Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.”

The law violates the First and Fourteenth Amendment rights of private employers and consultants for diversity, equity, and inclusion training, according to the lawsuit filed by honeymoon registry technology company Honeyfund.com, Ben & Jerry’s franchisee Primo Tampa, and workplace diversity consultancy Collective Concepts and its co-founder Chevara Orrin.

The plaintiffs are represented by Protect Democracy and Ropes & Gray LLC.

Shalini Goel Agarwal, counsel at Protect Democracy, said the law was “a direct attack on American free speech values as well as on free enterprise in Florida.”

“It is a fundamental value in our democracy that the government cannot punish speech that it dislikes, and it is especially important to protect speech that advocates for groups historically excluded from power,” said Ropes & Gray partner Doug Hallward-Driemeier.

In a separate challenge filed by two teachers, a student, and a consulting firm, Walker declined to block the law from taking effect July 1, saying those plaintiffs lacked standing to pursue a preliminary injunction.

Gov. Ron DeSantis (R) signed the legislation this year as part of his campaign targeting what he calls “corporate wokeness.”

The governor’s office didn’t immediately respond to a request for comment.

Training that endorses certain concepts related to racism, sexism, privilege, and merit-based advancement—such as individuals “must feel guilt, anguish, or other forms of psychological distress” because of past actions by other people of the same race or sex—“constitutes discrimination based on race, color, sex, or national origin,” according to the legislation.

If discrimination claims filed under Florida’s Civil Rights Act make it to court, an employee potentially could win back pay and compensatory damages, plus punitive damages not to exceed $100,000.

The case is Honeyfund.com Inc. v. DeSantis, N.D. Fla., No. 4:22-cv-00227, 8/18/22.

(Updates second paragraph regarding implementation of the law in schools.)

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editor responsible for this story: Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com