Can states legally ban “woke” training in the workplace?

In 2022, Florida passed The Individual Freedom Act. But most people know this law as the “Stop W.O.K.E. Act,” which stands for “Stop the Wrongs to our Kids and Employees.”

Whatever we call it, the Act says employers cannot subject “any individual, as a condition of employment,” to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” a certain set of beliefs. The list of banned subjects generally relates to “woke” teachings on race, color, sex, or national origin. Florida employers can host these trainings but cannot require employees to attend them.

After the law took effect, two companies that wanted to host mandatory training sessions they characterized as highlighting “diversity, equity, and inclusion” issues, another company that contracts with employers to host such meetings, and that company’s owner sued the State of Florida, claiming that the Act prohibits them from sharing their viewpoints in violation of the First Amendment.

Now, wait a minute, Eric! You’ve told us several times that employees have no First Amendment rights in private-sector workplaces.

Well, yes, But this is different.

What we’re talking about here is a state refusing to allow a company to endorse certain viewpoints — albeit controversial in the eyes of many.

But Florida didn’t see it that way. It insisted that what looks like a ban on speech is really a ban on conduct because only the meetings are restricted, not the speech.

The Eleventh Circuit Court of Appeals disagreed.

“Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse. A government’s desire to protect the ears of its residents is not enough to overcome the right to freedom of expression…The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech…Even if every employee did disagree with the banned viewpoints, it would not save the Act. No government can shut off discourse solely to protect others from hearing it….The First Amendment keeps the government from putting its thumb on the scale.” (cleaned up)

The net-net is that workplace training canincludes one or more of these topics.

However, be careful about practicing what you preach.

For example, Florida sought to ban mandatory training that an individual, based on their race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

If an employer literally discriminates against employees in the name of diversity, equity, or inclusion—in any state—that company may find itself in court defending a viable discrimination lawsuit.