I wrote a few weeks ago about the truly idiotic Stop WOKE Act that was passed in, you guessed it, Florida. Well, a federal judge just issued an injunction blocking its enforcement against private employers. The federal judge from the Northern District of Florida was duly irked:
In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. . . . Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.
The law, among other things, prevented private employers from certain diversity and anti-discrimination training.
The Court gives a detailed example, and the judge’s frustration is palpable:
In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA “to suggest that” the two are the same. FAIR, 547 U.S. at 62.
Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015).* As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the]capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14.These two scenarios, under Defendants’theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference. Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment. (emphasis added)
Things you didn’t think you had to say when you became a federal judge, but apparently did.
The state is, of course, appealing. And because the injunction applies only to private employers, state employees are being terrorized by this ridiculous law, especially since schools and colleges are resuming.
I’m sure this isn’t the last we’ll hear on this law. As I wrote before, the law is badly written and I believe it actually means the opposite of what the legislature intended. SMH.
* The fact that the judge doesn’t have to make this bizarre scenario up explains why I have had a busy law practice for 36 years.