Go Woke, Go Broke? Potential Legal Exposure For Florida Diversity Training Starts July 1

• Published date: 01 July 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Employee Rights/ Labour Relations, Diversity, Equity & Inclusion
• Law Firm: Ford & Harrison LLP
• Author: Ms Dawn Siler-Nixon, Louis Wilson and Emily Chase-Sosnoff

The "Stop WOKE Act" (HB7) (the "Act") is set to go into effect on July 1, 2022, following a court decision this week declining to enter an injunction to halt the Act. The Act, among other things, restricts employers from requiring diversity training that "espouses, promotes, advances, inculcates, or compels [employees] to believe" certain prohibited concepts related to race, color, sex or national origin. In a previous Legal Alert, we summarized the Act and provided insight into what this new law will mean for employers. While Florida's law is the first of its kind, there is speculation that other states could adopt similar legislation in the future.

Will the Stop WOKE Act Actually Go Into Effect on July 1?

It appears the Act will take effect July 1, 2022. Although a challenge to the law has been filed in the case of Falls, et al. v. DeSantis, et al., on June 27, 2022, a federal judge in the North District of Florida denied the request for a preliminary injunction from three of the plaintiffs, holding that they had not sufficiently shown that they are likely to establish standing for purposes of being entitled to a preliminary injunction to stop the Act from going into effect. The court did not rule on the injunction request of a fourth plaintiff, a University of Central Florida professor, and instead ordered the parties to submit additional briefs on whether a proposed rule directing how universities should carry out the law could affect that plaintiff's standing.

The court also did not rule on the substance of the challenges to the Act's constitutionality, leaving open the potential for additional lawsuits challenging the Act. Judge Mark E. Walker (Chief Judge of the Northern District of Florida, appointed by President Obama in 2012) specifically noted that the court "is not determining whether the challenged regulations are constitutional, morally correct, or good policy."

Critics of the Act argue that employers are entitled to exercise their right to free expression under the First Amendment of the U.S. Constitution and that the Act unlawfully restricts that right.

While Judge Walker denied injunctive relief for most of the plaintiffs in the Falls case, he ended his decision with a quote from a landmark 1943 U.S. Supreme Court case (involving First Amendment rights as applied to the classroom), which he suggested was an observation intended for "those who applaud state suppression of ideas that the government finds displeasing." The quote from that...