This is Bloomberg Law with June Brusso from Bloomberg Radio.
You should not have to compete in the Woke Olympics just to get a job or just to get admitted to a school. And so in Florida we said we're the state where woke goes to die, and we have made that a reality. We're going to do that for the country.
Florida Governor Ron DeSantis is campaigning to bring his anti woke agenda from Florida to the rest of the country, but one of his woke bands has been running into trouble in the courts, and now the Eleventh Circuit Court of Appeals appears skeptical of Florida's twenty twenty two Stop the Wrong to Our Kids and Employees Act, better known
as the Stop Woke Act. A panel of judges heard oral arguments in a first amendment challenge to the part of the law that restricts how businesses can conduct diversity training for their employees. A federal judge had already blocked both the workplace and university classroom portions of the law late last year. Joining me is David Lopez, a university professor at Rutgers Law School, and the former General Counsel of the EEOC SO David tell Us, about this anti woke law.
I think the act was pressed by Governor Destantus as part of an effort to sort of restructure the political landscape booth in Florida and in the United States, and it's been influential. There have been other states, mostly in the South and Midwest, who have also adopted similar type
of legislation. The legislation aims at basically restricting discussion of a specific concepts that the state deems repugnant and some of these related issues such as afformative action, such as reparations, such as discussions about institutionalized racism and its usualized sexism. And so almost immediately this act was challenged by students and educators in Florida, and it's also been challenged by
the business community. And what this act does that had drawn a lot of attention outside of the substance of sweep is that it actually creates a private right of action that allows individuals to do either professors or universities
or businesses who violate the act. And so for me, you know, I've worn different hats in my life, so I've been the being of a law school and the General Council, and in that capacity we have pushed certain types of training that take into account the changing diversity of the workforce and also really I think greater campabis issues such as sexual harassment and other forms of harassment
in the workplace. And you know, obviously this is to make sure that people understand their rights, but also to kind of build strong teams and productive workforces. I'm also now professor, and I teach in the area of civil rights, and so obviously I look at the fact with my professor hat and sort of how do I best generate
conversation about these really important topics in the classroom. But I'm also a plaint to slide lawyer, or as I tell my wife, I was a lawyer and I bought employment litigation, and so I also look at this act in terms of how it was written and what opportunities might provide to the place as far to really create mischief.
And so the interesting thing is that, you know, the fact I think represents what I had foreseen when I was at ESSC is really inclusion course between sort of the free market, pro business wing of the Republican Party and really sort of the cultural warriors that focused on issues such as critical right theory and abortion and immigration
and drag shows, right. And so I think that these two are really kind of coming into conflict here because you know, for the perspective of the business community, this means more litigation, right, This is government regulation that threatens additional litigation. And that's before you even get to the First Amendment, the very critical first Amnis.
The appeal of the Eleventh Circuit currently is over the workplace diversity training. The main argument there is the plaintiffs who represent the business say that that violates our First Amendment rights.
Yeah, and I mean this is a big First Amendment battle, And in some ways it's really ironic because Florida is the state as we know, which is incredibly diverse and also includes many people who end up in Florida really searching for freedom. But I think with this type of legislation, if you believe the District Court which is already issued to preliminary injunctions, these are sweeping restrictions on free expression
in the First Amendment. So this is a case that involves the private sector and involved the E and I trainee. The other case, which also arises out of the same act students and universities. The other one went up there was a preliminary injunction issued by a judge in Tallahassee that went up to the Eleventh Circuit. The Eleventh Circuit upheld the preliminary injunction. This one, there's another preliminary injunction, and that's what's being argued in front of the Eleventh Circuit.
But so far, you know, the State of Florida is really taking a meeting on this one. And you know, I didn't listen to the argument. I just read the press accounts, but it sounds like it, based on skepticism, is gone of the Eleventh Circuit, which by the way, is considered probably one of the friendliest circuits work case like this for the State of Florida.
And there were two Trump appointees on the panel and one Clinton appointee. What did they make of the argument from the state that we're not regulating speech, we're regulating conduct.
I think, you know, at least one and probably two expressed considerable skepticism about that, given that the legislation itself identifies eight category is of speech that basically the state itself is the clear repugnant. So the exposure of liability in the Act is related to the training, but it's as important it's related to training that incorporates these types
of ideas. And I think that the District Court was very clear in terms of like how this con viewpoint discrimination because it talks about like if you take you know, sort of the converse or you take the opposite position, that you're able to express those ideas without basing liability. But these certain specific types of ideas, you know, potentially will pull the trigger on liability, whether meritorists or not. There was a time and probably still now where businesses
are worried about frivolous lawsuits. So whether meritorious or not, you know, these types of ideas configure losses.
Yeah, so one of the judges, Judge Britt Grant, said you can make them listen to literally anything except those topics basically, I mean, she seemed to be hinting that this viewpoint discrimination.
Yeah, and this is a court of review. But that really does sort of pick up on what the District Court said when it issued as preliminary injunction. And you know, it provided examples both in the education context and an employment context. So here, for instance, if an employer mandates a very well regarded book called the Color Law, which deals with the history of government mandated housing segregation in this country and how it affects wealth today, that the
employee could get into trouble. But if it requires that the employees read you know, Woke Incorporated inside corporate American social justice stamp by one of our Republican presidential candidates, that that would not trigger liability, right, And I really have to say as a law professor that, and I thought this that my law students take apart many many different either loopholes or potential for liability. I think the District Court talked about some that you know, certainly we're
probably not within the complation of the state. You know, for instance, talking about American exceptionalism would seem to fall within the language of the Act. A discussion about whether Cuban migrants are entitled to privileged position and immigration system
would seem to run a fellow the Act. And you know, both of those are topics that will trigger a lot of discussions, right, but they would seem to fall within the language of the Act, as well as something like the propensity of men to commit gender based violence, as opposed to women, and to talk about that and sort of in realistic terms of historical terms would also seem
to run a fellow the Act. So much has been focused on the race aspect because I think that's where the Governor's trying to stand in the politics, but it's also include gender, and so for each of these topics you have to consider how it relates to the gender content. So I just think that the Districcurt came up with a lot of examples of how this is viewpoint discrimination.
But I think, you know, as an employment lawyer, one that really jumped out to me that is really surprising is that part of the Act talk about, you know, the suggestion that kind of neutral or color blind selection measures are discriminatory. That's the repugnant Act. And obviously in academia, the whole issue of color blindness as to whether it perpetuates historical discrimination in current discrimination is a really hot topic and it's one that's heavily debated and it should
be debated, right. But I think a little bit more to the point is that the unanimous decision of Grids versus Due Power, which is at nineteen seventy two decision, you know, basically encapsulated that idea that neutral principles can be discriminatory regardless of intent, and then that was ultimately codified by Congress by like ninety two to five votes in nineteen ninety one, Like Disparate Impacts has been codified, and Disparate Impact aims almost by its turns at systemic
discrimination at neutral mesons. Right, So, if you're an employer and you want to train on what the law is, you're potentially reading a fell of the state law. If you endorse still right after nineteen ninety one, query whether you're also reading a fellow the state.
I've been talking to David Lopez, former General Counsel at the EEOC and a visiting distinguished professor at Arizona State University about the eleven circuit oral arguments over Florida so called Stop Woke Act. Before the break, you were about to talk about why having these conversations is particularly important in Florida.
Today, particularly after there was what has apparently been a race based shooting in Jacksonville. Is that in nineteen ninety four, the Florida legislature passed the law that basically satisfied two point one million dollars for the known survivors of the Rosewood massacre, which was a massacre with black community in Levy County, Florida in nineteen twenty three. Right, and also satisfy the scholarship Fund, and the governor when he's signed
it talked about the state shame and moral responsibility. So the state itself, in my view, to its credit, you know, recognize this history and recognize it in the way that they provided what they regarded, you know, really broadly as sort of a moral compensation for this harm that was part of for it at the time, and as of yesterday, some may argue that there's a through line between that
violence and what happened. And so I think it's important for Pridians is a very diverse state, to be able to have these conversations in sort of an unfettered setting, and for responsible employers who now have diverse workforces. I think it provides a lot of scary, scary exposure for litigation, and that's why seeing challenged them of the person.
Another issue of the plaintiff's brought up was that this law is overly vague. I mean, it's hard to tell exactly what you can say in these diversity trainings and what you can't say.
Put on my point to side hat that much. But I'm like, oh, if I were a cynical plaint to side lawyer, it could be a gravy train in a lot of ways that I don't think that the state really thought through very well. But putting that hat aside, putting on either my employer hat but also my professor has, it's hard to make heads and tail. So a lot of the elements start to talk about whether I think
the state sort of started to make conceptions. But no, you can talk about this, you just can't endorse it. But at what point does triggering the discussion constitute an endorsement. I don't think that's clear right in the State's like, look at the dictionary, but I don't think that's clear.
I don't think that would be cure for me, as a professor who assigned the color of the law, who assigned the new GYMP pro which argues us the semis discrimination and the criminal justice system and requires the devil and the growth, which is about Thirdgood Marshall in Florida in the nineteen forties, navigating the realm of racial violence in that state, and I endorsed that book, and that
book talks about a lot of these issues. You know, I don't know at what point are you like to doors in the book or you're just like, oh, well read able to talk about it and you know whatever. As a professor, I think that some of the politicians completely don't get this way you want is you want to have a road best discussion from abroad range of perspectives.
I think what this legislation does in a state that's very diverse, it makes any conversation about race a gender, either at the university or in the workplace, you know, fraught with their.
Florida also said, well, this law only applies if the diversity training is mandatory for employees, And one of the judges said, how do you train an employee if they aren't required to go? But suppose it's not mandatory.
I'm going to basically express something that I've expected me by employers, which actually think makes a lot of sense. There's sort of damned that they do and damned if they don't. Right, So, if you take something like sexual harassment and the post me to era, and that is a form of the EMI training, if you can de sextual harassment training. The US Supreme Court law encourages you to do that, to take voluntary measures Act compliance, to
have a policy to address these issues. And those training can actually and I think should include a discussion about gender violence in our society and deal with issues of gender insects. But potentially, if you say something that is viewed as too sweeping, if you make it sound like women are by and large work, I think it's statistically true more likely to keep get some tender violence by men. Then the other way around, you can get to step
in trouble unders fact. And then even more broadly, I think, but Betn and I training, I think the whole idea of that is to sort of build teams and to create a productive workforce and get people working together.
Right.
There's still a lot of segregation in this country, but the workforce and w people come together. And as an employer, you want people working together productively. You want who wants them working together as teams, and sometimes that requires it you navigate a lot of the issues that exist from outside of the workplace that are brought into the workplace. Right.
And so you know, in the state of Florida, as I mentioned, there was an apparently race based shooting that you know, the city of Miami about thirty four years ago was wrapped by numerous incidents of civil unrest following shooting by the police department of African American men, and people are talking about that, right, and people have opinions about that, and people think about that, and they bring that into the workplace, and for you in the workplace
to try to navigate, you know, these distant views from the disperate backgrounds and disperate perspectives in order to build a team that is now frought with Carol, it's really hard to say, well, Okay, we're going to do this training, but only only for people who want to go right. We're going to have sexual harassment training calling people, so we're going to have racial harassment training, but only for
people who want to go right. Otherwise it's optional. You know, I think employers with a lot of the policies, a lot of their training that almost like undertupts the purpose of training in the first place.
Do you have a feeling for how the Eleventh Circuit's going to rule on this.
It's kind of part of tell where court's going to go on that. What I would predicted Regardless of how it goes, there will probably be petitions for either end Bank review or for Supreme Court review. I hate to make predictions, you know. I think for the statements is a real Updill battle and a very Compton battle. But I think it's fair to say that, you know, he's had a First Amendment problem in the courts, not only
in this area, you know, but in other areas. And I think I think part of the problems here, and this is me putting on my loficecor hat is I think that the performative nature of the politics here, the attempt I think, you know, established a brand, took testaments over. I think kind of serious drafting of legislation and thinking of through and you know that happens a lot. The politics of legislation will often lead to bad space instead of the careful lawyering that I think you need to do.
And that's legislations that's not going to cough tax there's a lot of money and then ultimately struck down. And so I'm in Arizona, so I've seen a lot of
that in Arizona. Arizona went through a period in the twenty tenth where it was really the ground Bureau of a lot of anti immigration legislation and also you know bands against Mexican emergeny studies and it's only banned, and almost all of that got stuck down in the court, as you know, violence of the constitutions, right, And so I just think that sort an invest the strategy before jun to the California Now you know, Texas jumping on board.
And I just think that sometimes and I can't say this is happening now, but I think sometimes the politicians are like, oh, even it gets struck down and all the sort of last court, it's still kind of a win one.
Well, we'll see whether it's a win at the eleventh Circuit or not. Thanks so much for being on the show. David. That's David Lopez, the former General Counsel of the EEOC. He's a professor at Rutgers Law School and a visiting professor at Arizona State University. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, And remember to tune into the Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg