Judge weighs challenge to ‘Stop WOKE Act’

A federal judge on Monday questioned part of a new Florida law that restricts the way businesses can address race-related concepts in employee training, as he weighed a request to block the measure.

The law (HB 7), passed during this year’s legislative session, was a top priority of Gov. Ron DeSantis, who dubbed it the “Stop Wrongs to Our Kids and Employees Act,” or Stop WOKE Act.

A group of businesses and a consultant filed a lawsuit in June challenging the measure’s constitutionality. The plaintiffs are an online honeymoon-registry company, a Ben & Jerry’s franchisee and a workplace diversity consulting company and its founder. All of them require or provide training sessions for workers on topics such as diversity, equity and inclusion.

Attorneys for the plaintiffs argued that the law violates the First Amendment and are seeking a preliminary injunction to block its enforcement, leading to a hearing Monday before Chief U.S. District Judge Mark Walker.

The law lists a series of concepts that would constitute “discrimination” if included in required employee training. For instance, the law targets training exercises that would “compel” an employee to believe that they bear “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 members of the same race or sex.

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Walker did not rule Monday, pledging to “move swiftly” on issuing a written order. But during a roughly two-hour hearing, Walker appeared to favor arguments by the plaintiffs’ lawyers that the measure targets speech that DeSantis and state leaders find objectionable.

Walker pointed to DeSantis’ Stop WOKE moniker for the law.

“We are attacking and going after a particular construct,” Walker said of the law, which the Legislature formally titled as “Individual Freedom.”

In a 47-page complaint, the companies and consultant spelled out ways that the law would hurt their businesses, including having to change the ways they conduct training sessions and losing clients.

“Though they do not work together, all plaintiffs are deeply committed to addressing racial and structural inequality and historical privileges associated with gender, sexual orientation, and skin color, no matter how upsetting or uncomfortable facing such topics may be,” the complaint said.

DeSantis, Attorney General Ashley Moody and members of the Florida Commission on Human Relations are named as defendants in the lawsuit.

John Ohlendorf, an attorney representing the state, argued that the law is intended to protect employees from being “a captive audience” to such training exercises.

“The state of Florida does not have a compelling interest in targeting speech because it doesn’t like the content,” Ohlendorf said Monday. “I do think the state of Florida has a compelling interest in preventing employers from forcing employees to listen to speech that suggests one race is inherently superior to another.”

Walker pushed back on the state’s arguments and appeared to side with an assertion by the plaintiffs that the law is vague and difficult to understand, based on a standard of person of average intelligence’s comprehension.

Walker focused on a part of the law that would label training discriminatory if it led an employee to believe that a person 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.”

“Apparently I’m a person of below-average intelligence, because I have no idea what that means,” Walker said.

The measure was one of the most-contentious bills during the 2022 legislative session. A separate federal lawsuit challenges parts of the law dealing with how race-related concepts can be taught in schools. Walker in June declined a request by plaintiffs in the education lawsuit to bar the law from going into effect.

Attorneys for the plaintiffs asking Walker to stop enforcement of the business-related part of the measure described a “chilling” effect that it has had on companies since it took effect July 1.

Shalini Goel Agarwal, an attorney representing the businesses, argued Monday that DeSantis has shown a pattern of “using the levers of state power” to punish the actions of businesses that he disagrees with.

“Our diversity, equity and inclusion trainer (plaintiff) says that so many of her own clients … have said that there is an amazing chilling impact. Because all these companies who, as a standard, do these types of trainings are feeling like, ‘We don’t know if we can do them anymore and we don’t know if we can say anything about it because we’re concerned about kind of a culture of retribution and retaliation that has been exerted against companies in Florida,’” Agarwal told reporters after Monday’s hearing.