States Clash With First Amendment on DEI, Captive Audience Laws

Private companies are under pressure to rethink communication with workers on labor and diversity-related topics as state legislative attempts to regulate messaging emerge from both sides of the political aisle, often implicating employers’ First Amendment protections.

Companies’ ability to counter-message against union organizers is under fire as Democratic-led state legislatures enact bans on “captive audience” meetings, including a Washington bill signed into law March 28.

Meanwhile, businesses’ workplace diversity trainings are targets of a broader conservative pushback against diversity, equity, and inclusion programs—most notably in Florida where Gov. Ron DeSantis (R) has signed several “anti-woke” bills into law.

A March federal appeals court decision in Honeyfund.com v. Governor, State of Florida took some of the pressure off businesses, as a conservative-leaning panel of judges from the US Court of Appeals for the Eleventh Circuit struck down part of Florida’s diversity training restrictions as a violation of employers’ free speech rights.

But states are poised to continue testing the bounds of when and how they can regulate workplace speech, setting up future courtroom clashes over the extent of employers’ First Amendment rights in protecting their communications with employees.

The Utah House passed a twist on Florida’s diversity training limits earlier this year—proposing to ban employers forcing workers to sign statements affirming they agree with the DEI lessons—before a Senate committee ultimately voted it down. Washington became the sixth state to ban mandatory meetings where employers opine on political or religious matters including unionization, with similar proposals pending in California, Colorado, and Maryland.

“The Eleventh Circuit decision does not bode well for those captive audience laws, even though there’s a little bit of a distinction because the Florida law prohibited certain positions on particular topics,” said Michael J. Soltis, a law professor at Quinnipiac University and former labor and employment lawyer.

The three-judge panel, which included two Trump appointees, found the Florida law restricted specific types of speech based on viewpoint, which the court called “the greatest First Amendment sin.” The law banned mandatory workplace meetings at which employers espoused any of eight specific concepts, including that people of a certain race or gender should feel guilty for the actions of their ancestors.

Federal courts will soon have their chance to weigh in specifically on those captive audience bans promoted by labor backers as well. Business groups have sued to challenge such laws in Connecticut and Minnesota. The groups argue the bans violate employers’ First Amendment rights and are preempted by the National Labor Relations Act.

Supporters of the captive audience bans say they don’t restrict speech that endorses specific viewpoints as the Florida law did.

“The laws are focused on making sure individual workers have the right to opt out of such a meeting if it is not clearly related to their job duties and requirements,” said Jennifer Sherer, director of the state worker power initiative at the Economic Policy Institute. “It is pretty different from the Florida example.”

Broader Pressure

It’s possible the restriction on diversity training at private-sector workplaces won’t spread beyond Florida, given how strongly the Eleventh Circuit panel rejected it, said Jonathan M. Crotty, a labor and employment attorney at Parker Poe Adams & Bernstein LLP in Charlotte.

But more states could go forward with those laws despite the likelihood they’ll be struck down.

“The point of this may not be to put a constitutional law into place,” he said. “It may be more of a political exercise depending on the circumstances.”

Red state lawmakers have already proven eager to limit DEI-related discussions at workplace trainings in the public sector, where employees including teachers and professors have less power to assert First Amendment rights against government limits on what they can say about sexuality and racism.

The state legislative efforts are only one source of legal and regulatory pressure on employers’ communications, as federal agencies and activist litigation also pose a threat.

National Labor Relations Board General Counsel Jennifer Abruzzo has been vocal in asserting that existing federal law should be interpreted to ban anti-union captive audience meetings. Democrat-backed legislation in Congress known as the PRO Act would revise the NLRA to ban those meetings more explicitly.

On the DEI front, major corporations and law firms have faced litigation claiming their efforts to hire diverse workers run afoul of federal anti-discrimination laws, following the US Supreme Court’s 2023 decision striking down affirmative action policies in higher education.

In another appeal pending at the Eleventh Circuit, an Atlanta-based venture is defending against bias claims by arguing its grant program for Black women entrepreneurs is protected as free expression under the First Amendment. A panel of Eleventh Circuit judges took a skeptical view of the argument at a Jan. 31 hearing.

It’s possible companies conducting diversity training will see more cases like one the Tenth Circuit recently rejected. A White employee in that suit claimed DEI training amounted to harassment, creating a hostile work environment.

“I wonder whether that will be the next approach from people who are opposed to workplace DEI training to basically bring a reverse discrimination claim under Title VII” of the 1964 Civil Rights Act, Crotty said.

“What we’re telling our clients is you should focus on the content of the DEI training. Don’t just hire a vendor and let them go,” Crotty said. “What’s being communicated to your workforce? Is it consistent with the goal of the training?”

Harassment, Discrimination Laws

Beyond the fight over DEI policies, the First Amendment potentially collides with discrimination law in other ways.

A handful of states, for example, require businesses to train their employees on awareness and prevention of sexual harassment, Soltis said.

Roughly a half dozen states including California and New York have enacted statutes requiring the training, while courts in other states have found training is an implied part of employers’ responsibility under state anti-discrimination laws.

“I haven’t seen any challenges to those, but is that content-based communication required by the state? It seems to me it is,” he said.

Even state and federal anti-bias laws, including Title VII, could be seen as infringing on First Amendment rights in the workplace under the Eleventh Circuit’s interpretation in Honeyfund, Florida’s attorneys argued in the case. They contended that the threat of harassment and hostile work environment claims put a legal burden on employers to restrict the speech of their managers and employees.

The Eleventh Circuit panel rejected the notion, saying Title VII’s restrictions on speech are incidental to its broader purpose of preventing discrimination. And the court didn’t agree with Florida that its law had the same broader purpose.

Nevertheless, echoes of Florida’s argument find their way into Title VII cases periodically.

When Soltis previously defended companies against workplace harassment claims, if they were based primarily on verbal harassment, he would raise First Amendment rights “as an affirmative defense,” he said.

“My general recollection is that courts sought to avoid that,” Soltis said. “There’s not many decisions that address it head-on.”