In a strongly worded and unanimous opinion, a panel of judges from the Eleventh Circuit Court of Appeals determined that Florida’s STOP W.O.K.E. Act[1] is unconstitutional. The court noted that Florida’s defense of the law’s validity represented “clever framing rather than lawful restriction.”

Enacted in 2022, the STOP W.O.K.E. Act forbids employers from mandating workplace training that discusses concepts such as privilege, systemic racism, and other issues purporting that employees should assume responsibility for historical discriminatory actions by others of their race. The State of Florida justified this law with the intent to shield workers from what it termed “hostile speech.”

Two Florida companies that offer mandatory diversity training sessions challenged the statute, seeking an injunction against its enforcement. The district court granted the injunction, prompting Florida to appeal. On appeal, Florida presented two main arguments: (1) The STOP W.O.K.E. Act regulates conduct rather than speech; and (2) Even if the Act incidentally regulates speech, its primary impact is on conduct—and the state possesses extensive authority to govern conduct.

The appellate court firmly dismissed both arguments:

The Act Regulates the Content of Speech: The court observed that to determine whether a mandatory workplace training was permissible under the law, one would need to evaluate the content of the training. The STOP W.O.K.E. Act only prohibits mandatory trainings that communicate specific messages or viewpoints—it does not restrict all mandatory trainings. Thus, because the conduct (the training itself) is intrinsically linked to its content (the topics covered), the legislation must be seen as a regulation of speech.

The Act Impinges on Both Conduct and Speech: The court dismissed Florida’s argument that the law only affects conduct—by outlawing certain trainings—meaning it falls outside the ambit of speech regulation necessitating strict scrutiny. The court stated that, according to Florida’s rationale, the state could also “prohibit participation on a parade float if it opposed the message displayed” or “forbid arranging chairs in a circle for book clubs that discuss disfavored literature.” The Court declared that “[t]he First Amendment is not so easily neutered” and cited decades of case law that strikes down statutes limiting speech under the guise of regulating related conduct.

After confirming that the correct lens to analyze the law’s proscriptions was that of speech and not mere conduct, the Court found that Florida had failed to provide substantial justification for suppressing speech in the workplace. Specifically, Florida aimed at safeguarding employees from being exposed to claims “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.” Yet, the breadth of the law was such that it also barred employees from engaging with viewpoints they might endorse.

In concluding, the Court emphasized that “[i]ntellectual and cultural tumult do not last forever, and our Constitution is unique in its commitment to letting the people, rather than the government, find the right equilibrium.” Consequently, because Florida overtly sought to dictate this balance by proscribing workplace training content based on the viewpoints it expressed, the STOP W.O.K.E. Act violated the First Amendment’s safeguard against government interference with speech.

What this means for you

As we have previously advised, employers may continue their efforts at increasing inclusive and diverse workplaces and seeking to identify and prevent discriminatory practices. This Court ruling solidifies that employers can train their teams about historical, systemic issues that impact the workplace, and that the government’s ability to regulate this private speech will be limited. For questions about this ruling or any other issues related to diversity, equity, and inclusion in the workplace, contact Erik Eisenmann, Sarah George, or your HB attorney.

[1] The “Stop W.O.K.E. Act” stands for “Stop the Wrongs to our Kids and Employees” and is also known as the Individual Freedom Act.