As we reported previously, Governor DeSantis signed the “Stop WOKE” Act into law on Friday, April 22, 2022. Ten minutes later, five individuals, including three teachers, a student, and an individual consultant who provides diversity, equity & inclusion (DE&I) training to employers, filed a lawsuit in the Northern District of Florida seeking a preliminary injunction against the new law. This lawsuit appears to be the first challenging state legislators’ attempts to restrict or ban discussion of DE&I concepts claimed to be connected to critical race theory (CRT).

The case was assigned to Chief Judge Mark Walker, an appointee of President Obama. Judge Walker is an experienced jurist who has previously considered other constitutional challenges to Florida legislation. Most recently, on March 31, 2022, Judge Walker invalidated three Florida laws as unconstitutional for placing illegal restrictions on voting. Governor DeSantis has vowed to appeal that ruling. While subject to possible appellate reversal, Judge Walker’s opinion in that case may hint at how he will ultimately rule concerning the Anti-WOKE legislation.

The new lawsuit claims the Anti-WOKE legislation originated from Governor DeSantis’ desire to ban and restrict support for CRT. The plaintiffs argue that the legislation violates free speech rights of Florida employers and educators. 

Specifically, the plaintiffs argue that applying this law in the workplace would restrict free expression by suppressing viewpoints for the sole reason that conservative lawmakers disagree with them, which, the lawsuit argues, is not a legitimate government interest. The lawsuit claims “these provisions regulate how employers train their employees without any legitimate or compelling government interest to do so. Rather, the [legislation] imposes sweeping restrictions on employer’s speech based on anecdotal incidents of what Governor DeSantis calls ‘corporate wokeness’.”

The lawsuit also argues that key provisions of the new law are unconstitutionally vague and overbroad when they impose sweeping general principles with which Florida employers are required to conform or with which they are prohibited to disagree. The provisions of the law, the plaintiffs claim, are “so vague that they fail to put a reasonable person on notice of what is prohibited and would cause people of common intelligence to guess at its meaning and differ as to its application.” They claim such imprecision invites arbitrary and discriminatory enforcement and, therefore, violates the 14th Amendment’s guarantee of due process.

The plaintiffs are seeking a declaratory judgment, an injunction and attorneys’ fees. A hearing on the motion for preliminary injunction has been scheduled for Friday, April 29, 2022, and is expected to include evidence and oral argument. A preliminary decision on the injunction request may be issued immediately with a written opinion to follow.

In the meantime, and pending further judicial guidance, employers with mandatory DE&I, implicit bias, “respect in the workplace,” or equal employment opportunity compliance training programs with topics that potentially fall into one of the categories described in the “Stop WOKE” legislation may wish to consider scheduling such training to be completed before the new law goes into effect on July 1, 2022. If the workplace training delivery schedule is expected to extend beyond this date, employers should review their programs or consider reaching out to counsel for assistance in exploring cautionary options. Littler will continue to keep you updated about new developments on this matter.