by Kyle Sammin
Friday, 19
August 2022
Analysis
18:02

Can Ron DeSantis ban diversity training?

A judge ruled against the 'Stop WOKE Act', but the law could survive
by Kyle Sammin
DEI trainers beware. Joe Raedle via Getty

Florida governor Ron DeSantis and his allies in the state legislature have been leading the charge against woke corporations. But this week the enforcement of one of their new laws, the Individual Freedom Act (popularly known as the “Stop Wrongs Against Our Kids and Employees Act” or “Stop WOKE Act”) was paused after U.S. District Court Judge Mark E. Walker issued a preliminary injunction against it.

The law bans workplace exercises in diversity training that the legislature believes make for a hostile workplace. Specifically, it prohibits trainings that suggest that a worker might bear “personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part.” The law also bans companies from including training that says a worker, “by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,” among other things.

According to the plaintiffs in the suit — a couple of Florida businesses and a workplace diversity consultancy — this violates freedom of speech, which is protected by the First Amendment. The state is now barred from enforcing the law pending the judge’s final ruling on its constitutionality.

The law never stood much of a chance before an Obama-appointed district court judge with a long history of ruling against the acts of Florida’s Republican governors and legislature. But even as Judge Walker’s opinion is being celebrated on the political Left for its scathing tone and hip pop-culture references, the actual legal reasoning raises deeper questions about anti-discrimination laws and free speech in the workplace.

The Stop WOKE Act is essentially a ban on several topics being discussed in the workplace. On its face, that sounds like a free speech problem — private citizens are being told that they may not say certain things, under penalty of law. A plain reading of the First Amendment suggests that free people should be free to discuss whatever they want. If that means making your employees sit through boring or obnoxious lectures by overpaid consultants, so be it. It’s a free country.

Florida says that forcing workers to endure these trainings constitutes workplace discrimination by creating a “hostile work environment.” This takes a longstanding thread of left-leaning jurisprudence — “hostile work environment” reasoning is what allows companies to ban racist and sexist speech — and applies it to right-wing aims, which the judge believes “trivializes” the aims of civil rights protections for workers.

But does it? Federal protections against workplace discrimination began in the 1960s with a normal understanding of the word “discrimination.” Employers were banned from favouring one race, ethnicity, or sex in hiring, promotion, or any other treatment. But beginning in the 1980s, lawyers and judges stretched that concept to include prohibitions on any kind of “intimidating, hostile, or offensive working environment”, including speech that protected classes might find offensive.

The plaintiffs say that mandating diversity training could not possibly be intimidating or hostile in the same way it is hostile to, say, permit racist comments in the workplace. But are Florida’s legislators crazy in asking whether mandatory training sessions that say all white people are unconsciously racist rise to that level? Judge Walker agrees with the plaintiffs but cannot seem to articulate a limiting factor other than to declare that it “rings hollow” to equate the two. But if civil rights law can ban one kind of speech about race that makes workers feel offended or intimidated, why could it not ban another?

In reaching a final decision, the court faces the difficult task of distinguishing woke lectures on racial determinism from the old-fashioned racism they increasingly resemble.

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Penny Adrian
Penny Adrian
1 month ago

My concern is that Diversity Training is fueling a backlash against black people, just as extreme forms of trans activism have fueled a backlash against the trans community.
Black people make up only 14% of the US population.
It is political idiocy to promote the idea that anti-black racism is the most important form of oppression in the USA, when the majority of poor & disabled people in the country are white, and when there are so many other forms of oppression that the other 86% of the population suffer from.
All this serves to do is divide black Americans from other Americans with whom they could form coalitions (like on universal healthcare, affordable housing, living wages, victims rights, etc).
Instead, black Americans are put on a Pedestal of Oppression which creates resentment in other groups of people who could be helpful allies.
But I suspect the “woke” activists have zero interest in actually helping poor black people; they just want to build their careers off the continued suffering of poor black people.

Christian Moon
Christian Moon
1 month ago
Reply to  Penny Adrian

Have you never heard of bio-Leninism?

Peter Johnson
Peter Johnson
1 month ago
Reply to  Penny Adrian

If you follow alt right media it is creating a huge backlash against all of the progressives favoured classes. However progressive policies like CRT are making mocking them pretty easy. Drag queen story hour anyone?

Suz D
Suz D
1 month ago
Reply to  Penny Adrian

I absolutely agree. When you look deeper into the chain of belief that creates these divisions, poverty is the universal root. The powers that be are focusing on the wrong thing.

Linda Hutchinson
Linda Hutchinson
1 month ago
Reply to  Penny Adrian

It is a divide and rule policy to keep the elites in power. Unfortunately naive but genuine (usually young) people are being used as “useful idiots” to further the cause of of these powerful rich people so that they can turn a blind eye to the increasing inequalities in the US and UK. It’s not a co-incidence that the two countries with the greatest inequalities are also the two countries where this nonsence has made the greatest inroads. Young people are being used whilst also being invited to identify with these people; they can turn their collective backs on the racist, ignorant working-classes and the avaricious older generation who are stealing young people’s futures but who might actually know a little something about how the world works. They have the perfect cadre for their agenda, brain-washed and pliant, the western equivalent of the Red Guard, Pol Pot’s minions, ommunist youth and the H*tler Youth. They are not behaving like these groups (yet?) but are primed to do so, witness Scotlands attempts to bring in a law to make it illegal to say some things in your own home, who do they expect to do the reporting?

harry storm
harry storm
1 month ago

Though I don’t disagree with much of what you say, it’s wildly incorrect to say that the US and UK are the two countries with the greatest inequality. I can think of many others in this big world of ours with far greater inequality.

Harry Child
Harry Child
1 month ago

Oh that would be easy- they would install listening devices in every home – maybe they are already there in your TV set?

Michael Askew
Michael Askew
1 month ago

Freedom of speech is not the right to force other people to listen.

Ian Barton
Ian Barton
1 month ago
Reply to  Michael Askew

Getting rid of compulsory attendance will probably be the cowardly workaround that organisations will turn to first when they start to backtrack from this nonsense.

Last edited 1 month ago by Ian Barton
Wilfred Davis
Wilfred Davis
1 month ago
Reply to  Michael Askew

Yes, that is indeed the crux of the matter.

There is no equality of arms when one party (employer, council, police force, armed service, professional body, and so on) insists on forcing its ‘freedom of speech’ down the throats of its captive audience, whose livelihoods depend on abject obeisance.

Wilfred Davis
Wilfred Davis
1 month ago
Reply to  Michael Askew

[Testing because previous posting marked ‘awaiting for approval’.]

Last edited 1 month ago by Wilfred Davis
Aaron James
Aaron James
1 month ago

Judge rules no one may prevent the West from writing its long suicide note….

Suz D
Suz D
1 month ago

I just wish we could all get along. A friend of mine who is a UK based University Lecturer was forced to undergo this training. The training was essentially targeting white on black racism. Not only is it insulting the intelligence of reasonable people, it also left out students from asian cultures which is another example of fighting racism with more racism.

Incidentally, the majority of the staff refused to undergo the training.

Richard Craven
Richard Craven
1 month ago
Reply to  Suz D

“Incidentally, the majority of the staff refused to undergo the training.”
Good, but how come your friend was forced to undergo the “training” if his/her colleagues were able to refuse?

Wilfred Davis
Wilfred Davis
1 month ago
Reply to  Suz D

I agree with what you say.

The thing that I would like to know, though, is whether those who refused to undergo (submit to) the training – well done, by the way – will suffer in their careers because of their refusal. (You mention both being forced and refusing, so the question is open.)

In plenty of organisations such training is mandatory, and refusal to be subjugated to it can have serious consequences.

Rose D
Rose D
1 month ago
Reply to  Suz D

Not to mention their silence on anti-semitism.

Jeremy Bray
Jeremy Bray
1 month ago

So this judge thinks it does not constitute the creation of a hostile environment for whites to be obliged to listen to someone accusing them of racism regardless of their actual opinions – particularly if they believe people of different skin colours should be treated equally. And yet an article in Medical News Today (see comments to Kathleen Stock’s article in Unherd today) apparently considers that the following constitute abusive gaslighting:
“Trivializing: This occurs when a person belittles or disregards how someone else feels. They may accuse them of being “too sensitive” or overreacting in response to valid and reasonable concerns.
Stereotyping: An article in the American Socialogical Review says that a person may intentionally use negative stereotypes about someone’s gender, race, ethnicity, sexuality, nationality, or age to gaslight them.”
The judge seems to be no more than a dishonest gaslighter by this measure.

Christian Moon
Christian Moon
1 month ago

Repealing the 2010 Equality Act in the UK is starting to look like a constructive move that would build on the Sewell Report’s findings.
We don’t have a problem except one created by the legislation.

Margaret TC
Margaret TC
1 month ago

This is another insane turn of the screw – self appointed progressives now using freedom of speech to block conservatives who have been using it to block progressives!

Jeremy Bray
Jeremy Bray
1 month ago
Reply to  Margaret TC

I am not sufficiently familiar with the Jurisdiction of the US Supreme Court to know if this will end up before them. I certainly look forward to reading Clarence Thomas’s judgement in that event.

harry storm
harry storm
1 month ago

Based on what I’ve read here about the law, De Santis is 100% correct and judge’s reasoning is flawed. Why should workers be forced — and they are forced — to endure tongue lashings that suggest they bear “personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part.” Why should a worker be forced to listen to “training” — newspeak for harangues — promoting the racist idea that he or she “by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,”
De Santis’ style may be offputting to some, but just as the so-called “don’t say gay” bill sensibly banned teaching kids under 9 — 9 for chrissakes — about gender, sexuality, etc., this bill sensibly eliminates what amounts to workplace harassment by an ideology that brooks no opposition to its ridiculous narrative.

A. M.
A. M.
1 month ago

Yup. Civil Rights Law means heads I win, tails you lose. What you do is “speech”, but what I do is “conduct, that involves speaking”.

Last edited 1 month ago by A. M.