A federal court in March issued a decision impacting the diversity, equity, and inclusion (DEI) legal landscape. The case demonstrates the rapidly evolving state of the law with respect to DEI.
In Honeyfund.com Inc. v. DeSantis, the U.S. Court of Appeals (Eleventh Circuit) upheld an injunction that blocks enforcement of a Florida law prohibiting certain forms of DEI training by private employers on the grounds that it impermissibly violates the First Amendment.
DEI workplace training restrictions
On March 4, the Eleventh Circuit affirmed a decision that blocks the portion of Florida’s Stop WOKE Act prohibiting employers from conducting some mandatory DEI training.
In August 2022, a lower court issued a preliminary injunction that prohibited employers from requiring employees to attend workplace training that “espouses, promotes, advances, inculcates or compels” employees to believe a specified list of ideas related to race, color, sex, or national origin, holding that it violated the First Amendment’s right to freedom of speech, as it was an impermissible viewpoint-based regulation on speech.
The Eleventh Circuit affirmed the district court’s order. The State of Florida had argued that the Stop WOKE Act only prohibits the conduct of employers by prohibiting DEI training, not the speech of employers to discuss DEI concepts.
The Eleventh Circuit disagreed, noting that mandatory DEI training would be permitted under the act only if the training endorses the viewpoints that Florida’s current administration holds, which constitutes “an illegal per se ban on speech the state disagrees with.”
The Eleventh Circuit also rejected Florida’s arguments that “it has a compelling interest in protecting individuals from being forced, under the threat of losing their jobs, to listen to speech ‘espousing the moral superiority of one race over another,’ ‘proclaiming that an individual, by virtue of his or her race, is inherently racist,’ or ‘endorsing the racially discriminatory treatment of individuals because of past racist acts in which they played no part,’” and that “these categories of speech… qualify as ‘invidious discrimination’ that the state can regulate.”
The Eleventh Circuit reasoned “that many people find these views deeply troubling does not mean that by banning them Florida is targeting discrimination.”
The Eleventh Circuit also found that the Stop WOKE Act is not narrowly tailored, explaining: “Even if we presumed that the Act served the interest of combating discrimination in some way, its breadth and scope would doom it.
Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse. A government’s desire to protect the ears of its residents ‘is not enough to overcome the right to freedom of expression.’”
Accordingly, the Eleventh Circuit held that the plaintiffs had a substantial likelihood of success on the merits of their claims and affirmed the district Court’s preliminary injunction order.
Implications for Employers
This decision is welcome news for employers that promote within their businesses training and other policies focused on equity and inclusion. The Florida law was the first state law seeking to regulate the content of private employers’ trainings on DEI-related topics.
It is possible the ruling will have a chilling effect on other state legislation that seeks to do the same thing.
That said, employers should continue to carefully review the content of their DEI trainings and weigh the pros and cons of making such trainings mandatory in consultation with counsel. Trainings that suggest that certain racial groups are inherently biased or have engaged in systemic racism may give rise to harassment claims under yield
and analogous state laws.
For example, at least one court recently held that requiring an employee to attend mandatory DEI trainings that “discussed racial issues in essentialist and deterministic terms—ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race” might create a hostile work environment on the basis of race.
