In the case before the United States District Court for the Northern District of Florida, two private employers and a diversity, equity, and inclusion (DEI) consultant and training company argued that the Stop WOKE Act (HB7) is unconstitutional because it restricts free speech and is impermissibly vague.   

In a previous legal alert, we summarised HB7 and provided insights into what this law means for employers. In short, HB7 prohibits Florida employers from requiring employees to attend any training or activity that ‘espouses, promotes, advances, inculcates, or compels’ an individual to believe certain prohibited concepts relating to race, colour, sex, or national origin. 

In the colourful opinion authored by Chief US District Judge Mark E. Walker, the court found that HB7: 

 ‘unconstitutionally discriminates on the basis of viewpoint in violation of the First Amendment and is impermissibly vague in violation of the Fourteenth Amendment.’  

While this opinion only halts enforcement of HB7 pending a final decision on the merits of the complaint, the court made very clear that it believes HB7 is unconstitutional. 

On First Amendment (specifically free speech) grounds, the court found that HB7 is a ‘naked viewpoint-based regulation’ on employers’ free speech because it ‘targets only those viewpoints with which the State disagrees.’ Viewpoint-based restrictions, the court noted, are ‘presumptively unconstitutional.’ In the words of Chief Judge Walker, cases where viewpoint-based restrictions are constitutional ‘are few and far between,’ and HB7 ‘is no unicorn.’ In holding that the employers were substantially likely to succeed on the merits, the court stated:  

‘If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents.’ 

On Fourteenth Amendment grounds (those relating to citizenship and civil rights), the court found that HB7 is impermissibly vague. The court noted that the prohibited concepts described in HB7 are ‘mired in obscurity’ and ‘bordering on unintelligible.’ To illustrate, the court considered the fourth topic, which states that employers cannot endorse the view that:  

‘members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.’  

The court noted this topic ‘features a rarely seen triple negative, resulting in a cacophony of confusion.’ When employers cannot understand what exactly is prohibited, like here, the law is void for vagueness. 

Because the plaintiffs showed they were substantially likely to succeed on the merits and met the other factors required for a preliminary injunction, the court halted enforcement of HB7. The court also ruled that ‘no exceptional circumstances’ existed to allow the law to remain in effect pending any appeal by the defendants. 

The court’s opinion temporarily blocks the state of Florida from enforcing any alleged violation of HB7. For now, it would seem Florida employers can move forward with diversity, equity and inclusion training and conversations without fear that they may be alleged to have espoused or endorsed a prohibited concept by simply discussing or covering certain topics.

However, employers should carefully monitor the proceedings in this case. Representatives from Florida Governor DeSantis’s office have indicated that they intend to appeal the court’s preliminary injunction ruling, and the merits of the case are still pending before the Northern District of Florida. 

#diversity #equality #discrimination #workplacetraining  #US #Florida