Can Even Stranger Things Still Happen? Florida Is Blocked From Enforcing "Stop-WOKE" Law' For Now

• Published date: 23 August 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Nancy A. Johnson and Cindy-Ann Thomas

Following a series of stops and starts, Florida's Individual Freedom Act (IFA), or the so-called "Stop-WOKE" law, was partially enjoined on August 18, 2022. The law, which went into effect July 1, 2022, had dramatically restricted the sorts of communications employers and educators are permitted to make concerning diversity, non-discrimination and anti-harassment. The employment component amended Florida's state counterpart to Title VII, the Florida Civil Rights Act (FCRA), by prohibiting promotion of eight topics purportedly influenced by "critical race theory" (CRT), including institutional racism, racial bias, and gender expansiveness.

The injunction issued by Chief Judge Mark Walker prohibits the Florida Commission on Human Relations and the Florida Attorney General from enforcing the IFA's provisions against employers. As Judge Walker warned, however, his order does not prohibit individuals from pursuing private causes of action based on the law. The defendants are expected to appeal the injunction shortly.

The Court's Findings

In his opinion Judge Walker took note of the unusual nature of the IFA - a first-of-its-kind legislative attempt to prohibit so-called "woke" speech, which the legislative history of the law characterizes as "repugnant." Judge Walker compared the legislation to the "upside down" - the distorted reality affecting the characters in the Netflix series "Stranger Things." While the First Amendment of the U.S. Constitution bars a state from burdening speech, the judge said the Florida law turns "the First Amendment upside down" by regulating how private employers can provide diversity training to their employees and prohibiting speech that is unpopular to politicians currently in power.

Judge Walker rejected the State's argument that it has a compelling interest in "preventing employers from 'foisting speech that the State finds repugnant on a captive audience of employees.'" Instead, he embraced the century-old constitutional mantra that even if Florida finds certain speech "repugnant," the remedy for repugnant speech "is more speech, not enforced silence."¹

Judge Walker noted that, as written, the law does not prohibit only mandatory "training" but actually restricts endorsement of concepts at a training "or any other required activity," including phone calls, assignments, and even discussions in the workplace. These restrictions are so vague, the judge concluded, that a reasonable employer cannot be expected to understand what is...