Florida’s “Stop W.O.K.E. Act” is Unconstitutional; Racial Discrimination Is Also Illegal

In 2022, Florida’s Stop W.O.K.E. Act (“Act”) went into effect. The Act banned (a) “certain mandatory workplace trainings” in private companies, and (b) “public-school instruction that aims to ‘indoctrinate or persuade students to a particular point of view inconsistent’ with certain principles.” In Honeyfund.com Inc. v. Governor, State of Florida, the Eleventh Circuit federal court of appeals recently held that the part of the Act targeting what is commonly known as DEI training within private companies was unconstitutional under the First Amendment. The appellate court did not address the portion of the law directed at public schools.

In my article addressing the Honeyfund.com case, I pointed out that Diversity, Equity and Inclusion (“DEI”) is a relatively new term that embraces some highly controversial concepts. DEI is commonly associated with a number of beliefs, such as, (a) America is a systemically racist and misogynistic country, (b) only certain racial groups can be racist, (c) disparities in outcomes are caused by systemic discrimination, and (d) the remedy for past discrimination is current discrimination. The embrace of DEI inspired training by many employers has become a highly controversial topic.

Florida chose to address the rapid growth of DEI training programs by prohibiting employers from endorsing certain messages during mandatory training programs. The Act broadly defines “mandatory training” and then identifies a broad list of messages that an employer cannot endorse during such mandatory training:

“[m]embers of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin,”

“[a]n individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,”

“[a]n 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,”

“[a]n 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.”

“[s]uch virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist . . .”

The Eleventh Circuit held that the Act targeted certain viewpoints and was unconstitutional under the First Amendment.

While the Eleventh Circuit’s First Amendment decision in Honeyfund.com is a win for First Amendment rights, it may represent a pyrrhic victory for companies that want to embrace DEI training programs and policies. The Fourth Circuit’s decision in Duvall v. Novant Health, Inc. is the proverbial canary in the coal mine. In Duvall, the plaintiff was a white male who successfully sued his former employer (Novant Health, Inc.) under Title VII of the Civil Rights Act of 1964 for terminating his employment in order to replace him with a black woman. Mr. Duvall was able to convince a jury that he was terminated as part of a diversity and inclusion plan that Novant Health had implemented, which focused on increasing the number of women and blacks in higher level executive positions.

Mr. Duvall worked for Novant Health as a Senior Vice President of Marketing and Communications. The court stated that “[e]vidence presented at trial demonstrated that Duvall performed exceptionally in his role, receiving strong performance reviews and gaining national recognition for himself and the marketing program he developed for Novant Health.” Before Mr. Duvall was terminated, Novant Health approved a “Diversity and Inclusion Strategic Plan” that “consisted of three phases”. The second phase “would set goals to ‘embed diversity and inclusion’ in three to five years, with a commitment to ‘adding additional dimensions of diversity to the executive and senior leadership teams’ and establishing ‘a system wide decision making process that includes a diversity and inclusion lens.’” In May 2018, Novant’s D&I Council “continued its discussion of D&I metrics. . . [and] reviewed demographic data on Novant workforce and leadership, which showed a decline in female leaders from 2015 to 2017 . . .” Mr. Duvall was fired in July 2018. He was initially replaced on a temporary basis “by two of Duvall’s deputies, a white woman and a black woman . . .” Novant Health “later hired another black woman to permanently replace Duvall.”

The decision in Duvall shows the conflict brewing between federal civil rights laws, like Title VII, and DEI training policies and DEI plans. An employer may have a First Amendment right to tell its employees that current discrimination against whites is appropriate to remedy past discrimination, but a company does not have the right to act or have its employees act on such principles. Academic debates on esoteric theories of racism are protected by the First Amendment. Training employees that it is appropriate to discriminate against other employees on the basis of their sex and/or race may very well lead to conduct that is unlawful under Title VII of the Civil Rights Act of 1964, and many other state and local laws. While advocates of DEI will argue that discriminating against certain races is not possible as a theoretical matter, acting on such ideas in the workplace opens the door to significant liability under Title VII.

The First Amendment will not protect employers who violate Title VII by taking adverse employment actions against employees on the basis of their race or sex. In Honeyfund.com the Eleventh Circuit, for example, recognized that while the First Amendment protects speech, it does not generally protect conduct. While some types of conduct and constitute speech, firing an employee because of their race or sex is not speech that is created by conduct. The First Amendment protects a company’s right to say, for example, that it believes discriminating against white employees is morally good because of past discrimination against blacks. If the company acts on such beliefs when making an adverse employment decision, it is outside the protection of the First Amendment and is subject to liability under Title VII.

Under Title VII and similar civil rights laws, DEI training has at least two negative effects for employers with respect to liability for discriminatory conduct, even if the speech is protected by the First Amendment. First, if an employer trains its workforce to view white employees as racist and that discrimination against white employees is appropriate, the employer may very well have employees who act consistently with such training. Anti-discrimination training will then have the ironic effect of making unlawful discrimination under Title VII more likely instead of less likely. This could take many different forms, such as, (a) creating a hostile work environment, (b) discriminatory hiring practices, (c) discriminatory promotion decisions, (d) discriminatory compensation decisions, and (e) discriminatory termination decisions. Further, an employer may face significant problems trying to undo the damage caused by such DEI training. It could take years for an employer to retrain its workforce and trigger additional litigation in the process. Employers may soon learn that holding a tiger by the tail is not a good position.

Second, attorneys can use DEI training and DEI policies as evidence that their clients were terminated, in part, because of discriminatory policies. In Duvall, a key piece of evidence against Novant Health was its implementation of its Diversity and Inclusion Strategic Plan. Mr. Duvall did not have to show that the sole reason for his termination was Novant Health’s implementation of its Diversity and Inclusion Strategic Plan. Mr. Duvall had “advanced a mixed-motive theory of liability under [Title VII], which provides that ‘an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.’” (Emphasis added). An employer’s conducing DEI training that endorses discrimination against certain races when linked to a DEI plan will make it much easier for a plaintiff to show that race or sex was a “motivating factor” for an adverse employment decision against white employees.

There are a number of lessons from Duvall. While an employer presenting DEI concepts to their employees is protected by the First Amendment, such speech may have a long-term cost for the employer. The speech presented in DEI training is protected under the First Amendment, but the actions of employees who act on such training in a discriminatory manner is likely unlawful under Title VII and not protected under the First Amendment. Although DEI training may be protected speech, this does not make it a good idea, given the many anti-discrimination laws that an employer must follow.

At the Law Offices of George M. Sanders, P.C., we stand firm against discriminatory practices in the workplace and beyond. We believe that every individual deserves to work in an environment free from prejudice, where their rights are respected, and their contributions are valued. Our team is dedicated to fighting for justice, advocating for those who have been unfairly treated, and seeking remedies for victims of discrimination. Contact us today to learn more about how we can support you in addressing discriminatory practices and safeguarding your rights.