Employers May Hold IE&D Training in Florida

Takeaway: Florida is blocked from enforcing a provision in its Individual Freedom Act (IFA) prohibiting employers from holding workplace training that covers inclusion, equity, and diversity.

Employers in Florida wanted to offer workplace training covering inclusion, equity and diversity (IE&D) but were prohibited from doing so under Florida’s Individual Freedom Act (IFA). They sought an injunction of the act’s provision preventing them from holding such training. The court of appeals recently affirmed the lower court preliminarily enjoining enforcement of the IFA’s mandatory-meeting provision as a violation of protected speech under the First Amendment.

In the case at hand, four plaintiffs sued the Florida governor, Florida attorney general, and several members of the Florida Commission on Human Relations in the U.S. District Court for the Northern District of Florida, challenging the mandatory-meeting provision in the IFA (Fla. Stat. §760.10(8)(a)). The plaintiffs said the act violates their right to free speech, is “vague and overbroad,” and restricts them from conveying certain viewpoints.

Honeyfund and Primo Tampa LLC are two of the plaintiff companies that were seeking to set up mandatory employee training sessions covering IE&D topics. A third plaintiff is the founder of the final plaintiff, Whitespace Consulting LLC, a firm hired by employers to host such meetings.

The district court granted a preliminary injunction. The state appealed. The 11th U.S. Circuit Court of Appeals reviewed the granting of a preliminary injunction for abuse of discretion.

Florida’s IFA bans certain mandatory workplace trainings. According to the appeals court, the IFA “seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to.”

In its argument, Florida in part characterized the IFA as an anti-discrimination law. However, the court said that in focusing its speech restrictions at “a list of ideas designated as offensive, the act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.”

Florida countered that the act does not really ban speech, but rather conduct, because it is the meetings that are being restricted, not the content of those meetings. The court rejected that idea, writing that this “characterization reflects a clever framing rather than a lawful restriction.”

As the court explained, Florida claimed it has an interest in protecting individuals from “invidious discrimination,” which it said resulted from employees being forced, under the threat of losing their jobs, to listen to speech “espousing the moral superiority of one race over another.”

The court wrote, however, that “even if we presumed that the act served the interest of combating discrimination in some way, its breadth and scope would doom it. Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse.”

Florida said the act is “narrowly tailored” because it covers only mandatory instruction. That means, according to the court, discussions forced on unwilling employees. The court was not persuaded. “Enduring speech we dislike is a necessary price of freedom,” the court wrote.

Florida also suggested that the act’s restrictions are minor, in part because “they limit just one way in which employers can convey their desired message,” the court noted. But the court was not persuaded, saying, “The fact that other avenues of expression exist does not” obviate the unconstitutional nature of speech bans.

Finally, the court disagreed with Florida likening the IFA to Title VII of the Civil Rights Act of 1964. Under the IFA, “speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law. That important distinction sets this act apart from Title VII as an outright violation of the First Amendment. … Florida’s law exceeds the bounds of the First Amendment.”

The appellate court affirmed the lower court preliminarily enjoining enforcement of the mandatory-meeting provision of the IFA because it “undermines” the basic principle of free speech as protected in the First Amendment.

Honeyfund.com Inc. v. Governor, State of Florida, 11th Cir., No. 22-13135 (March 4, 2024).

D.M. Fera is a freelance writer in the Washington, D.C., area.