Judges skeptical of Florida workplace training ban

An attorney for the state of Florida ran into stiff questioning Thursday from a federal appeals court panel about the free speech implications of a state law barring mandatory employee training on race, gender, and other controversial topics.

The three-judge panel of the 11th U.S. Circuit Court of Appeals is considering whether to overturn a lower court’s August 2022 order that blocked a portion of Florida’s Individual Freedom Act—also known as the Stop WOKE Act—from taking effect. In that ruling, U.S. District Judge Mark Walker called the state’s move “a naked viewpoint-based regulation on speech that does not pass strict scrutiny.”

Honeymoon registry company Honeyfund.com, Ben & Jerry’s franchise holder Primo Partners, and a diversity consultant who wants to provide anti-racist training for employers challenged the law in June 2022.

The controversial measure bans employers from requiring employees to attend training on eight subjects that critics call “forbidden concepts.” According to the lawsuit, one of the concepts is the idea that “members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.” Another is that such “virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.”

In an Atlanta federal courthouse Thursday, judges seemed skeptical of the state’s argument that the law permissibly regulated conduct and not speech—removing it from the reach of the First Amendment.

“Businesses remain free as they ever were to espouse those concepts and to advocate for them,” attorney John Ohlendorf argued on behalf of the state. “The [law] bars only the conduct of threatening an employee with termination.”

“How do you train an employee if they don’t have to go?” asked Circuit Judge Britt Grant, who led the questioning, implying that it was the employer’s right to present the kind of training it deemed appropriate. “I’ve had a lot of required seminars that I would have really liked to skip in my life,” she said, adding levity to the proceedings.

Grant, appointed by former President Donald Trump in 2018 at the relatively young age of 40, also questioned whether the state was exclusively focused on conduct. “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?” she asked. “It can make employees attend seminars all day long on topics that are not covered by the law, but it removes that expressive ability of the company for certain topics. Why isn’t that a restriction on speech?”

Appealing to U.S. Supreme Court precedent, Ohlendorf countered that the First Amendment “does not require the right to press even good ideas on unwilling listeners.”

Yet Grant was less enamored with the business owners’ argument that the law was too vague to understand. “I don’t have a hard time, I don’t think, understanding really what these eight topics are,” she told Shalini Agarwal, an attorney for the businesses. “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?”

Judges also seemed to wrestle with how the federal government could protect employees from a hostile work environment under Title VII of the Civil Rights Act and yet allow mandatory training that some employees feel creates a hostile work environment. In his 2022 lower court ruling, Walker recognized that employees required to attend race-based training could in some instances argue that a workplace training program is so offensive that it creates a hostile work environment for white employees.

Other provisions of the law regulating the way race-related topics can be taught in universities and colleges have been blocked by Walker since November 2022 in a separate lawsuit filed by a group of university professors. The state has also appealed that ruling, but no hearing on the case has yet been scheduled.

Florida is not the only state where race-based workplace training has been challenged. In two lawsuits filed in 2021, one in Springfield, Mo., and the other in Evanston, Ill., employees at public schools claim that mandatory anti-racist training violates free speech guarantees and equal protection by dividing students and teachers by race. Both cases are still in litigation.