In 2022, Florida enacted the Individual Freedom Act, which Governor Ron DeSantis called the “Stop WOKE Act” (“the Act”). Specifically, the Act prohibited Florida employers from requiring employees to attend any training or activity that “espouses, promotes, advances, inculcates, or compels” an individual to believe certain prohibited “concepts” relating to race, color, sex, or national origin.  On March 4, 2024, the U.S. Court of Appeals for the Eleventh Circuit upheld an August 2022, preliminary injunction previously issued by Judge Walker of the U.S. District Court for the Northern District of Florida, in which it ordered state officials in Florida to take no steps to enforce the Individual Freedom Act, Fla Stat. § 768.10(8) (also known as HB7 or the “Stop WOKE Act”) based on concerns the law is unconstitutional.

In Honeyfund.com, Inc. v. Governor, State of Florida (11th Cir. Mar. 4, 2024), the Eleventh Circuit Court of Appeals held that the Act draws “distinctions based on viewpoint – the most pernicious forms of dividing lines under the First Amendment” – and cannot be sustained as an “attempt to control speech by recharacterizing it as conduct.” In this case, two private employers and a diversity, equity, and inclusion (“DEI”) consultant and training company argued that the Act is unconstitutional because it restricts free speech and is impermissibly vague.

In a 22-page decision, the Eleventh Circuit analyzed and rejected the Act, and stated it was “the latest attempt to control speech by recharacterizing it as conduct,” and opined that the Act commits “the greatest First Amendment sin” by targeting speech based on content and penalizing certain viewpoints that the state has identified as offensive.  Because the Act regulates speech based on content, it was subject to strict-scrutiny review. Pursuant to this standard, Florida had to “show that the Act’s prohibitions are the least restrictive way to achieve a stated – and crucial – purpose.” The Eleventh Circuit disagreed that Florida had a “compelling interest” in protecting employees from being “forced” to listen to speech “espousing” the “concepts” at issue. Instead, the Eleventh Circuit stated, “Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory.”

This opinion only stops enforcement of the Act pending a final decision on the merits of the complaint. However, as a result of this ruling, Florida may not use the Act to prohibit employers from requiring employees to attend training that discusses the concepts proscribed in the Act. For Employers where Eleventh Circuit precedent applies, this decision means that they have discretion to continue DEI training without fear that it will be prohibited by the Act.  Employers should keep themselves apprised of the Act and other similar proposed actions as it will impact what training topics are allowed moving forward.