On August 24, 2023, over a year after Florida’s Individual Freedom Act (IFA) (commonly referred to as the “Stop-W.O.K.E.” law) went into effect, and about one year after a Florida federal court partially enjoined the new law, a three-judge panel for the U.S. Court of Appeals for the Eleventh Circuit Court heard argument in Florida’s attempt to dissolve the injunction and allow the law to go forward unimpeded. 

As a reminder, the IFA was passed amidst the state’s push to restrict the advancement of so-called “woke” ideas specifically within a school setting and separately, within a workplace. As to the application to employers, this law amended the Florida Civil Rights Act (FCRA), which largely mirrors protections for employees akin to those protected by Title VII, the ADA and the ADEA. The IFA, however, adds a prohibition against subjecting any individual to training or any other activity in the workplace that “espouses or promotes” such individual to believe in any of eight listed concepts. 

Within hours of the law’s enactment, several businesses raised a concern that the IFA unconstitutionally limited what and how employers could communicate in the workplace relating to diversity, non-discrimination, and non-harassment. They sought an injunction and an ultimate determination that the law cannot be enforced because it improperly impedes free speech and is unconstitutionally vague.

The constitutional challenges eventually made their way to Judge Mark Walker of the Northern District of Florida who, on August 18, 2022, issued a partial injunction to the employment side of the IFA prohibiting the Florida Commission on Human Relations (FCHR) and the Florida Attorney General from enforcing the law’s provisions as they apply to employers until otherwise ordered. However, as Judge Walker warned, his order did not prohibit private citizens from pursuing a private cause of action based on this law, which remains on the books. 

Even though the IFA was partially enjoined, employers have still remained in limbo since, as it stands, an employer that merely requires its managers to act in a way that promotes gender inclusivity or to promote a belief that unconscious bias exists could be subject to a claim by an employee who was merely required to be present in such workplace that could expose the employer to significant damages – in addition to the associated costs of defense.  The fact the law is currently under appeal mitigates against any enforcement of this law through a private action, and we are currently unaware of any private actions underway.  Regardless, the risk remains.

Following Judge Walker’s order, Florida filed a notice of appeal asking the Eleventh Circuit to dissolve the injunction and ultimately instruct the lower court to allow the law to be enforced. In doing so, Florida argued the law is not a restriction on free speech based on viewpoint. As such, Florida argued the law does not merit higher scrutiny under the First Amendment. After briefing, oral argument was held on the state’s appeal.

Attorneys for Florida suggested “the resulting burden is on the conduct, not the speech… the conduct is not being able to terminate the employee for not attending the seminar [which espouses or promotes the defined ‘anti-Woke’ concepts].”  The state’s argument suggested a reading of the law it wrote that seems in contrast to the words of the law itself. Puzzlingly, Florida suggests that the IFA allows employers to continue saying anything they want to without violating the statute, but concede that it bars them from mandating that employees attend meetings where these concepts are endorsed.

Further, in response to questions about the vagueness of the IFA’s language, Florida argued the IFA is aimed at the “same goals as Title VII,” namely, “keeping racist, sexist, discriminatory words out of the workplace.” Even accepting this as a reasonable reading of the law, Judge Brasher specifically questioned whether Florida could take other approaches to limiting what the state claimed it perceived as a racially offensive message in the workplace without running afoul of the First Amendment. This seems to suggest that the judges may be leaning toward determining heightened scrutiny is indeed warranted here. 

In contrast to Florida’s argument, the plaintiffs (and lower court Judge Walker) read the law so that it would not just prohibit mandatory trainings. Instead, the wording of the law specifically restricts promotion, espousal, etc., of concepts at a training or any other required activity. Thus, while Florida now proposes a relatively narrow reading of the law, the plain language—and at least Judge Walker’s reading—is very different and far broader and subject to more expansive interpretations.

As to the plaintiffs’ arguments that the IFA is unconstitutionally vague, another panel member proposed hypotheticals to Florida asking how an employer could train an employee if the employee is not required to attend a training pursuant to law. It was not lost on any of the judges that plaintiffs (and indeed other employers) may find it difficult to understand exactly what is and is not permitted under the language used in the law itself. 

A formal decision may be issued at any time, but it typically takes at least a month or more for that to be handed down following oral argument. And, while initial reaction to the questions being asked by the panel indicate that the Eleventh Circuit will likely uphold the injunction, other possibilities include a request for re-hearing or an appeal to the U.S. Supreme Court. 

Employers that have already tailored their inclusion, equity & diversity training programs or incorporated the use of an IFA-compliant “attendance waiver” for their Florida-based employees should stand by given that the battle over “Stop-W.O.K.E.” is not expected to conclude even with the anticipated Eleventh Circuit ruling.

Littler will continue to follow developments with this law closely, as well as similar laws that may be passed in other states and will keep readers apprised of significant updates.