Appeals court says employers can decide on DEI training

A decision by the 11^th Circuit Court of Appeals enables Florida employers to require meetings and/or employee training on a 2021 law’s “restricted areas,” including diversity, equity, and inclusion (DEI) programs.

In 2021, the state of Florida passed the Individual Freedom Act, commonly known as the “Stop W.O.K.E. Act.” The law banned Florida employers from mandating employee attendance to any training or instruction that “espouses, promotes, advances, inculcates, or compels” a certain set of beliefs regarding the treatment of individuals based on race, color, sex, or national origin.

The law did not stop training on the general subject of protected classes, but instead any discussion that “endorses” ideas that a certain race is either morally superior to another or is inherently discriminated against. The law did not prohibit mandatory training that promoted other types of ideas not included in the list. The law also did not bar voluntary attendance at these types of training – only policies that made it mandatory.

Case history

Two companies sued the state of Florida because they wanted to mandate employee training that they said would highlight “diversity, equity, and inclusion” values. The companies said that the Florida law stopped them from sharing their viewpoints with their employees.

In August 2022, a district court granted a preliminary injunction against enforcement of the law stating that it was both unconstitutionally vague and “an unlawful content-and viewpoint-based speech restriction” under the First Amendment to the Constitution. The state of Florida appealed to the 11^th Circuit.

Appeals court decision

The unanimous decision in Honeyfund.com, Inc. v. Governor, State of Florida (11^th Cir. Mar. 4, 2024) listed all the types of training that the law prohibited, recognizing that those ideas “are embraced in some communities, and despised in others.” By prohibiting training regarding only certain types of ideas, the court stated that the act “targets speech based on its conduct.” By penalizing certain viewpoints, the Florida law commits “the greatest First Amendment sin.”

The state of Florida argued that by banning attendance at the mandatory workplace training, it was regulating conduct, not speech. The law banned only mandatory meetings where those ideas were taught.

The 11^th Circuit responded that since the prohibition was attached to the content of the speech at the training, the only way to figure out if the training was prohibited was to find out “whether the speaker disagrees with Florida.” That, in the words of the court “is a classic—and disallowed—regulation of speech.”

Florida also argued that the discrimination prohibition found in Title VII also regulated speech and therefore must be unconstitutional. The 11^th Circuit did not buy it. The court pointed out that while Title VII may have an incidental effect on speech, “it is not directed at it” like the Florida law.

Summary of court’s opinion

The court’s opinion ended with the following quote from the United States Supreme Court:

“The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”

The 11^th Circuit went on to hold that because the Florida law’s mandatory-meeting provision “undermines that basic principle,” it must be enjoined as unconstitutional.

Key to remember: An appeals court ruled that employers may require training on topics restricted by Florida’s “Stop W.O.K.E. Act,” including diversity, equity, and inclusion.