There Are Stranger Things in Florida than the Court Blocking Florida’s Individual Freedom Act

Asima J. Ahmad ●

Florida’s Individual Freedom Act (“IFA”), also referred to as the “Stop W.O.K.E. Act,” went into effect July 1, 2022, and, among other things, amended the state’s Civil Right Act of 1992 to make it unlawful for an employer to require its employees to attend mandatory trainings or instruction that “espouses or promotes” any of the following eight prohibited concepts:

      • That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
      • An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
      • An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin
      • 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
      • An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin
      • An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion
      • An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin
      • Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

The IFA was immediately challenged, including by a group of employers and a diversity and inclusion consultant, on First Amendment grounds. After determining that both the employer and consultant plaintiffs had standing to challenge the enforceability of the IFA, Chief Judge Mark Walker of the United States District Court for the Northern District of Florida entered a preliminary injunction preventing State officials from enforcing the IFA. Honeyfund.com Inc. v. Ron DeSantis et al. (Case No. 4:22-cv-00227). In what can only be characterized as a caustic rejection of the fundamental underpinnings of the law, Judge Walker referenced Netflix’s Stranger Things, noting that “Florida has seemed like the First Amendment upside down” and that, “like the heroine in Stranger Things,” the Court was “once again asked to pull Florida back from the upside down.” Judge Walker held that the IFA unconstitutionally discriminated on the basis of viewpoint in violation of the First Amendment, was impermissibly vague in violation of the Fourteenth Amendment, and did not pass strict scrutiny. The Court further noted that the IFA bans more than just trainings; rather, it bans “any … required activity” at which the eight prohibited concepts are discussed, which could conceivably include “trainings, phone calls, assignments, discussions.” The Court went on to find that many of the prohibited concepts were vague or worse, using terms such as “mired in obscurity,” “unintelligible,” or “a cacophony of confusion.” 

The Court prohibited enforcement of the IFA until otherwise ordered; so, for the time being, Florida employers can return to conducting any regular workplace trainings. However, employers should proceed with caution and review all training and diversity measures, especially because we expect Judge Walker’s decision will be appealed to the United States Court of Appeal for the Eleventh Circuit.

Please contact a member of Blank Rome’s Labor and Employment team to answer any questions about reviewing or conducting your workplace trainings.

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