Opting out of diversity training in Florida

MARY REICHARD, HOST: It’s Tuesday, the 5th day of September, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Hope you had a good Labor Day weekend, and now it’s back to the office. And for some, back to the office may mean workplace diversity training.

If you work for a big company or organization in the public sector, there’s a good chance you’ve been required to attend some kind of DEI workshop. That is to say, training on diversity, equity, and inclusion.

Right now in Florida: a legal battle over whether companies can force employees to attend diversity workshops or whether it’s within government’s authority to protect employees from them.

REICHARD: Here to fill us in is WORLD legal reporter, Steve West. Good morning!

STEVE WEST: Good morning!

REICHARD: Could you give us some context for the law in Florida that’s at the center of this fight, and what’s behind the challenge brought against it?

WEST: Well, earlier this year, in March, Florida legislators passed the Individual Freedom Act, which is also called the “Stop Woke Act,” or “Stop Wrongs to Our Kids and Employees.” Florida Gov. Ron DeSantis backed the act. His concern—and the concern of many—is that racially divisive training for employees has proliferated, whether it’s called anti-racist training, critical race theory, or just diversity, equity, and inclusion. So the concepts banned by the Florida law include teaching that one race is morally superior to another, that a person is inherently racist or sexist simply by virtue of their race or sex, or that virtues such as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist. Those are all ideas that would be a surprise to most Americans. Two companies and a diversity consultant challenged the law on free speech grounds. A federal judge blocked the law. And then the state appealed.

REICHARD: I see that back on August 24th, a panel of circuit judges seemed skeptical of the state’s defense. They had a lot of questions for the attorney for Florida. What did they find troublesome about that side?

WEST: The case raises free speech concerns—that is, the free speech rights of private companies to communicate concepts and principles to their employees that the company believes in. Florida’s attorney argued that this wasn’t about speech at all, it’s about conduct, about whether an employee could be forced to attend objectionable training. And then Circuit Judge Britt Grant, a Trump appointee, questioned that distinction.

JUDGE GRANT: If you can't tell whether the law applies to this purported conduct, unless you know what the speech is, how is that not restricting speech?

Judge Grant asked if the reasoning of Florida’s Individual Freedom Act would also require social media companies to delete followers from accounts on the basis of, say, pro-communist viewpoints, and if such an action would count as speech or conduct. Here’s state attorney John Ohlendorf’s reply, and the exchange that follows:

OHLENDORF: Any company remains free to host speech, hosted workplace trainings, espousing any concepts, at least setting aside any independent Title Seven problems—

GRANT: You just can't actually train, you just can't actually let them train people at their workplace trainings.

OHLENDORF: What they can't do is they can't require employees to attend. That's the that's the—

GRANT: How do you train an employee if they don't have to go? I've had a lot of required seminars that I would have really liked to skip in my life. Of course, regardless of the content, you just have other things to do, right?

OHLENDORF: Of course, Judge Grant, I've been fortunate that we don't have very many of those. But I understand, Your Honor. But the fact remains that the company in that position is able to host the speech, the equivalent in the social media context, Judge Grant, would be some sort of requirement that people look at the speech that's been hosted, right?

REICHARD: Steve, how would you respond to the judge’s argument about speech and conduct?

WEST: Two points. First, I think this is a bar on conduct, not speech, even though we need to understand what content the employees are being trained on to determine if the employee can be forced to attend. It addresses whether an employee can be forced to listen to a very ideologically-charged message. But second, even if it is deemed to be speech, the state has a compelling interest in protecting employees from racially divisive workplace training and has used the least restrictive means of doing that—allowing employees to opt out.

REICHARD: Do you think it’s government overreach to prevent companies from making certain training mandatory?

WEST: No, I don’t think so. Much like Title VII operates to allow accommodation of employee’s religious views in individual cases, this law operates on a broader level to protect individual rights of conscience. Businesses remain free to train in controversial topics; they just can’t force employees to attend.

REICHARD: Did the judges ask the businesses bringing the lawsuit any tough questions?

WEST: Yes, Judge Grant again led the questioning of the business owners’ attorney, and she was less enamored with the argument that the law was too vague to understand—making it unconstitutional.

GRANT: I don’t have a hard time, I don’t think, understanding really what these eight topics are. How vague are these really to a person of common understanding who has been in Florida or the United States for the last five years?

WEST: On that point the business owners’ attorney could only talk about how difficult it would be for the employer to determine whether their training would run afoul of the law–which misses the point, as the employer can say whatever they like as the employee is the one deciding whether to opt out.

REICHARD: Which side would you say has the stronger constitutional case as far as view-point discrimination goes?

WEST: It’s unclear. Hard questioning by judges—particularly by one of three judges—doesn’t necessarily predict how a case will turn out, particularly if they think the answers to their questions helped. Sometimes they’re just playing the devil’s advocate, so to speak, testing the waters. But judging by this hearing, anyway, I give slight odds to the business owners, as the state’s attorney got the harder questions.

REICHARD: Final question, Steve. This may end up at the Supreme Court. What lines of reasoning would you expect to see there about individual freedom and workplace diversity training?

WEST: This Supreme Court has been one very supportive of First Amendment rights, and as it has shown in the Groff v. DeJoy ruling in this past term, it is supportive of broad accommodations for religious employees under Title VII. In the past few years, employees have objected to ideologically charged training for a variety of reasons—some religious, some not. Often they don’t speak up for fear of losing their jobs. Yet I cannot imagine a court majority which has upheld and supported a law allowing accommodation in individual cases would not leave in place a state law which makes that same accommodation for all employees. You can have your free speech; you just can’t make everyone listen. That seems like a win for all.

REICHARD: Steve West is a legal reporter for WORLD…Steve, thanks for bringing us this story!

WEST: My pleasure!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.