Federal court stymies “Stop WOKE;” DEI-forward employers, do not let these laws faze you
Posted September 8, 2022
The inevitable has come to pass: The “Stop WOKE” Act’s provisions limiting employer trainings are subject to preliminary injunction under an August 18 federal court ruling, giving Florida employers at least a temporary reprieve from the ongoing legal battle surrounding diversity-and-inclusion training efforts. DEI-forward employers must channel vigilance and resilience for the long haul — this cycle is unlikely to end anytime soon. But this does not mean your DEI efforts should end; to the contrary, any employer who wants to talk the DEI talk must muster enough courage to walk the walk in the face of this type of legal uncertainty. Put simply, employers skittish about laws like Stop WOKE must invest in nuanced solutions and update their legal risk calculus accordingly — or stop profiting from DEI marketing.
The plaintiffs who sought the preliminary injunction in Honeyfund.com v. DeSantis are far from the only companies to have significant resources on the line as meaningful DEI work faces legal challenges. Organizations around the world in recent years have invested money, time and employee energy into developing thoughtful, forward-thinking DEI training programs. Their driving forces range from employee demand for such efforts, to clearer articulation of their core values, to heightened awareness of DEI as a critical component of ESG (environmental, social and governance) strategy.
In this context and with global forces at work that are stronger than politicians’ antipathy, DEI progress is not going to stop. But related legal questions are multiplying.
Unpacking the preliminary injunction order
Chief U.S. District Judge Mark E. Walker on August 18 granted in part plaintiffs’ motion for a preliminary injunction in the case of Honeyfund.com Inc., et al., v. Ron DeSantis, in his official Capacity as Governor of Florida, et al. At issue was the so-called “Stop WOKE Act” (a contrived acronym that stands for Stop Wrongs against Our Kids and Employees), a part of the state’s “Individual Freedom Act that took effect July 1.
Stop WOKE, among other things, says that “subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section.”
The “eight forbidden concepts,” as Judge Walker described them in his ruling, reflect misleading caricatures that no DEI proponent would espouse, such as “Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.”
The outlined concepts do not improve much in their intellectual honesty from there. No. 6, for example, is as follows: “An 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.”
After lining up these strawmen, the law pays lip service to free speech by saying it does not prohibit discussion of these concepts in a workplace training context provided it happens “in an objective manner without endorsements of the concepts.”
Judge Walker eviscerates this argument in his ruling:
“[T]he IFA is designed to exorcise these viewpoints out of the marketplace of ideas—Governor DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs. It thus comes as no surprise that permissible discussion of these concepts turns on ‘objectivity’—an inherently vague term that fails to ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited … Additionally, lacking explicit standards to circumscribe enforcement of “objectivity,” Defendants can weaponize this term to further discredit the prohibited concepts.”
Calling the challenged provision of the Stop WOKE Act “a naked viewpoint-based regulation on speech that does not pass strict scrutiny,” Judge Walker granted in part the plaintiffs’ motion for preliminary injunction.
“Stop WOKE” was the state-law resurrection of the Trump administration’s “race and sex stereotyping and scapegoating” executive order — one that DEI practitioners and DEI-forward attorneys all saw coming. That executive order, EO 13950 — before it was struck down by a preliminary injunction and revoked as soon as President Biden took office — sought to shut down diversity trainings among federal contractors.
Laws like“Stop WOKE” influence behavior regardless of constitutionality
If this all sounds familiar, that’s because it is part of a playbook common in the context of civil rights progress and the backlash against it. Politically-motivated drafters pass legislation over and over again, expecting it to be challenged and even struck down. Over time, legislators with the goal in mind can hone each iteration of statutory language until something sticks. In the meantime, those political constituents benefit immediately and sustainably from the very “chilling effects” that often make these laws unconstitutional. No court can reverse such consequences.
Here’s how it happens: a law is passed, then a nebulous, far-off threat of enforcement combined with (1) a mandated “culture of compliance” among larger employers and (2) the use of new laws as marketing material for organizations whose revenue comes from legal services or legal information leads to clickbait headlines. These reach legal departments that act “in an abundance of caution” to ready their clients for compliance with the law. Caveats like constitutional challenges are likely far less headline-worthy; the speculative presumption of worst-case-scenario enforcement thus remains the driving force in organizational decisions. Often, impacted individuals or organizational functions (in this case, DEI practitioners) remain out of this communications loop until it is too late for them to have a meaningful impact.
The expressive function of law is a logical byproduct of the United States’ common-law federalist legal system involving separation of powers and binding judicial precedents. Take the recent example involving Roe v. Wade, a 1973 decision establishing a constitution prohibition against undue state interference in a person’s decision to terminate their pregnancy. A plethora of state laws restricting abortion rights enacted after 1973 sought to push the limits of the holding and expose vulnerabilities in its reasoning. When a court rules one law unconstitutional under Roe, the same law may reappear later or elsewhere, with different enforcement mechanisms or other modifications. This kept the right to make pregnancy decisions under perpetual threat for decades until the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization ultimately overturned Roe and its progeny entirely.
Similarly, laws like “Stop WOKE” and EO 13950 could be struck down over and over and still bring about their proponents’ desired results in the short term, perpetuating a cloud of legal risk to stymie progress they disfavor, until they are able to achieve a more sustainable legal formulation, even if it is decades later. Even if no one ever comes up with a version of this law that a reasonable jurist would uphold (setting aside for the moment the prospect of appointing enough unreasonable jurists willing to uphold it), a preliminary injunction like the one putting the brakes on “stop WOKE” will be issued within not hours, not days, but months after the law is passed. Ambiguity in constitutionally questionable laws is common, as (1) it may increase the likelihood that a court will uphold the law (courts are required to adopt a constitutional interpretation of a law if they can convince themselves that one exists); and (2) those impacted don’t know what it means so if they want to be “careful,” they’ll have to adopt the broadest, most unconstitutional interpretation. Doctrines of ripeness and standing can prevent challenges to a law until it is far too late to avert the harm flowing from news and social media buzz around it, which often begins months or years in advance of the successful legislation.
By the time even a preliminary injunction is issued, employers may have taken preemptive action to comply with the law. Plaintiffs in the Honeyfund v. DeSantis case include employers who have faced additional expense and confusion around their DEI programs. Also among the plaintiffs are DEI consultants who argue that the IFA “has had a chilling effect on Florida employers” who are struggling to understand what they are and are not allowed to do in the DEI realm. The preliminary injunction order noted that the law has already led to the employer plaintiffs spending time and money to seek attorney review of DEI training programs and to contemplate significant revisions to those programs. Meanwhile, the consultant plaintiffs have seen clients and potential clients second-guess or even scrap their own DEI plans amid the legal ambiguity imposed by the law.
The bottom line: compliance with constitutionally questionable laws will be costly and difficult to reverse, and the message sent to employees is demoralizing.
What can equity supporters within organizations do? Anyone can be an active ambassador for equity in decisions small and large; awareness of these legal dynamics offers an advantage.
Those in positions of power and privilege are often unattuned to realities so deeply ingrained in the legal system, having benefited from them passively — such individuals may be more likely to view such systemic norms as neutral or benign rather than oppressive. Even those who acknowledge inequities in the justice system conceptually often do not recognize them automatically. Laws such as Stop WOKE tend to reinforce this dynamic, leveraging aspirational terms like “freedom” and “equality” to entrench an inequitable status quo, implicitly deterring historically dominant groups from thinking critically about social, cultural, political and economic power systems and structures.
When faced with these and other legal developments in this space, advance equitable workplace change by keeping a focused perspective and resisting misinformation and alarmism.