Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: You should not have to compete in the Woke Olympics
Speaker 2: just to get a job or just to get admitted
Speaker 2: to a school. And so in Florida we said we're
Speaker 2: the state where woke goes to die, and we have
Speaker 2: made that a reality. We're going to do that for
Speaker 2: the country.
Speaker 3: Florida Governor Ron DeSantis is campaigning to bring his anti
Speaker 3: woke agenda from Florida to the rest of the country,
Speaker 3: but one of his woke bands has been running into
Speaker 3: trouble in the courts, and now the Eleventh Circuit Court
Speaker 3: of Appeals appears skeptical of Florida's twenty twenty two Stop
Speaker 3: the Wrong to Our Kids and Employees Act, better known
Speaker 3: as the Stop Woke Act. A panel of judges heard
Speaker 3: oral arguments in a first amendment challenge to the part
Speaker 3: of the law that restricts how businesses can conduct diversity
Speaker 3: training for their employees. A federal judge had already blocked
Speaker 3: both the workplace and university classroom portions of the law
Speaker 3: late last year. Joining me is David Lopez, a university
Speaker 3: professor at Rutgers Law School, and the former General Counsel
Speaker 3: of the EEOC SO David tell Us, about this anti
Speaker 3: woke law.
Speaker 1: I think the act was pressed by Governor Destantus as
Speaker 1: part of an effort to sort of restructure the political
Speaker 1: landscape booth in Florida and in the United States, and
Speaker 1: it's been influential. There have been other states, mostly in
Speaker 1: the South and Midwest, who have also adopted similar type
Speaker 1: of legislation. The legislation aims at basically restricting discussion of
Speaker 1: a specific concepts that the state deems repugnant and some
Speaker 1: of these related issues such as afformative action, such as reparations,
Speaker 1: such as discussions about institutionalized racism and its usualized sexism.
Speaker 1: And so almost immediately this act was challenged by students
Speaker 1: and educators in Florida, and it's also been challenged by
Speaker 1: the business community. And what this act does that had
Speaker 1: drawn a lot of attention outside of the substance of
Speaker 1: sweep is that it actually creates a private right of
Speaker 1: action that allows individuals to do either professors or universities
Speaker 1: or businesses who violate the act. And so for me,
Speaker 1: you know, I've worn different hats in my life, so
Speaker 1: I've been the being of a law school and the
Speaker 1: General Council, and in that capacity we have pushed certain
Speaker 1: types of training that take into account the changing diversity
Speaker 1: of the workforce and also really I think greater campabis
Speaker 1: issues such as sexual harassment and other forms of harassment
Speaker 1: in the workplace. And you know, obviously this is to
Speaker 1: make sure that people understand their rights, but also to
Speaker 1: kind of build strong teams and productive workforces. I'm also
Speaker 1: now professor, and I teach in the area of civil rights,
Speaker 1: and so obviously I look at the fact with my
Speaker 1: professor hat and sort of how do I best generate
Speaker 1: conversation about these really important topics in the classroom. But
Speaker 1: I'm also a plaint to slide lawyer, or as I
Speaker 1: tell my wife, I was a lawyer and I bought
Speaker 1: employment litigation, and so I also look at this act
Speaker 1: in terms of how it was written and what opportunities
Speaker 1: might provide to the place as far to really create mischief.
Speaker 1: And so the interesting thing is that, you know, the
Speaker 1: fact I think represents what I had foreseen when I
Speaker 1: was at ESSC is really inclusion course between sort of
Speaker 1: the free market, pro business wing of the Republican Party
Speaker 1: and really sort of the cultural warriors that focused on
Speaker 1: issues such as critical right theory and abortion and immigration
Speaker 1: and drag shows, right. And so I think that these
Speaker 1: two are really kind of coming into conflict here because
Speaker 1: you know, for the perspective of the business community, this
Speaker 1: means more litigation, right, This is government regulation that threatens
Speaker 1: additional litigation. And that's before you even get to the
Speaker 1: First Amendment, the very critical first Amnis.
Speaker 3: The appeal of the Eleventh Circuit currently is over the
Speaker 3: workplace diversity training. The main argument there is the plaintiffs
Speaker 3: who represent the business say that that violates our First
Speaker 3: Amendment rights.
Speaker 1: Yeah, and I mean this is a big First Amendment battle,
Speaker 1: And in some ways it's really ironic because Florida is
Speaker 1: the state as we know, which is incredibly diverse and
Speaker 1: also includes many people who end up in Florida really
Speaker 1: searching for freedom. But I think with this type of legislation,
Speaker 1: if you believe the District Court which is already issued
Speaker 1: to preliminary injunctions, these are sweeping restrictions on free expression
Speaker 1: in the First Amendment. So this is a case that
Speaker 1: involves the private sector and involved the E and I trainee.
Speaker 1: The other case, which also arises out of the same
Speaker 1: act students and universities. The other one went up there
Speaker 1: was a preliminary injunction issued by a judge in Tallahassee
Speaker 1: that went up to the Eleventh Circuit. The Eleventh Circuit
Speaker 1: upheld the preliminary injunction. This one, there's another preliminary injunction,
Speaker 1: and that's what's being argued in front of the Eleventh Circuit.
Speaker 1: But so far, you know, the State of Florida is
Speaker 1: really taking a meeting on this one. And you know,
Speaker 1: I didn't listen to the argument. I just read the
Speaker 1: press accounts, but it sounds like it, based on skepticism,
Speaker 1: is gone of the Eleventh Circuit, which by the way,
Speaker 1: is considered probably one of the friendliest circuits work case
Speaker 1: like this for the State of Florida.
Speaker 3: And there were two Trump appointees on the panel and
Speaker 3: one Clinton appointee. What did they make of the argument
Speaker 3: from the state that we're not regulating speech, we're regulating conduct.
Speaker 1: I think, you know, at least one and probably two
Speaker 1: expressed considerable skepticism about that, given that the legislation itself
Speaker 1: identifies eight category is of speech that basically the state
Speaker 1: itself is the clear repugnant. So the exposure of liability
Speaker 1: in the Act is related to the training, but it's
Speaker 1: as important it's related to training that incorporates these types
Speaker 1: of ideas. And I think that the District Court was
Speaker 1: very clear in terms of like how this con viewpoint
Speaker 1: discrimination because it talks about like if you take you know,
Speaker 1: sort of the converse or you take the opposite position,
Speaker 1: that you're able to express those ideas without basing liability.
Speaker 1: But these certain specific types of ideas, you know, potentially
Speaker 1: will pull the trigger on liability, whether meritorists or not.
Speaker 1: There was a time and probably still now where businesses
Speaker 1: are worried about frivolous lawsuits. So whether meritorious or not,
Speaker 1: you know, these types of ideas configure losses.
Speaker 3: Yeah, so one of the judges, Judge Britt Grant, said
Speaker 3: you can make them listen to literally anything except those
Speaker 3: topics basically, I mean, she seemed to be hinting that
Speaker 3: this viewpoint discrimination.
Speaker 1: Yeah, and this is a court of review. But that
Speaker 1: really does sort of pick up on what the District
Speaker 1: Court said when it issued as preliminary injunction. And you know,
Speaker 1: it provided examples both in the education context and an
Speaker 1: employment context. So here, for instance, if an employer mandates
Speaker 1: a very well regarded book called the Color Law, which
Speaker 1: deals with the history of government mandated housing segregation in
Speaker 1: this country and how it affects wealth today, that the
Speaker 1: employee could get into trouble. But if it requires that
Speaker 1: the employees read you know, Woke Incorporated inside corporate American
Speaker 1: social justice stamp by one of our Republican presidential candidates,
Speaker 1: that that would not trigger liability, right, And I really
Speaker 1: have to say as a law professor that, and I
Speaker 1: thought this that my law students take apart many many
Speaker 1: different either loopholes or potential for liability. I think the
Speaker 1: District Court talked about some that you know, certainly we're
Speaker 1: probably not within the complation of the state. You know,
Speaker 1: for instance, talking about American exceptionalism would seem to fall
Speaker 1: within the language of the Act. A discussion about whether
Speaker 1: Cuban migrants are entitled to privileged position and immigration system
Speaker 1: would seem to run a fellow the Act. And you know,
Speaker 1: both of those are topics that will trigger a lot
Speaker 1: of discussions, right, but they would seem to fall within
Speaker 1: the language of the Act, as well as something like
Speaker 1: the propensity of men to commit gender based violence, as
Speaker 1: opposed to women, and to talk about that and sort
Speaker 1: of in realistic terms of historical terms would also seem
Speaker 1: to run a fellow the Act. So much has been
Speaker 1: focused on the race aspect because I think that's where
Speaker 1: the Governor's trying to stand in the politics, but it's
Speaker 1: also include gender, and so for each of these topics
Speaker 1: you have to consider how it relates to the gender content.
Speaker 1: So I just think that the Districcurt came up with
Speaker 1: a lot of examples of how this is viewpoint discrimination.
Speaker 1: But I think, you know, as an employment lawyer, one
Speaker 1: that really jumped out to me that is really surprising
Speaker 1: is that part of the Act talk about, you know,
Speaker 1: the suggestion that kind of neutral or color blind selection
Speaker 1: measures are discriminatory. That's the repugnant Act. And obviously in academia,
Speaker 1: the whole issue of color blindness as to whether it
Speaker 1: perpetuates historical discrimination in current discrimination is a really hot
Speaker 1: topic and it's one that's heavily debated and it should
Speaker 1: be debated, right. But I think a little bit more
Speaker 1: to the point is that the unanimous decision of Grids
Speaker 1: versus Due Power, which is at nineteen seventy two decision,
Speaker 1: you know, basically encapsulated that idea that neutral principles can
Speaker 1: be discriminatory regardless of intent, and then that was ultimately
Speaker 1: codified by Congress by like ninety two to five votes
Speaker 1: in nineteen ninety one, Like Disparate Impacts has been codified,
Speaker 1: and Disparate Impact aims almost by its turns at systemic
Speaker 1: discrimination at neutral mesons. Right, So, if you're an employer
Speaker 1: and you want to train on what the law is,
Speaker 1: you're potentially reading a fell of the state law. If
Speaker 1: you endorse still right after nineteen ninety one, query whether
Speaker 1: you're also reading a fellow the state.
Speaker 3: I've been talking to David Lopez, former General Counsel at
Speaker 3: the EEOC and a visiting distinguished professor at Arizona State
Speaker 3: University about the eleven circuit oral arguments over Florida so
Speaker 3: called Stop Woke Act. Before the break, you were about
Speaker 3: to talk about why having these conversations is particularly important
Speaker 3: in Florida.
Speaker 1: Today, particularly after there was what has apparently been a
Speaker 1: race based shooting in Jacksonville. Is that in nineteen ninety four,
Speaker 1: the Florida legislature passed the law that basically satisfied two
Speaker 1: point one million dollars for the known survivors of the
Speaker 1: Rosewood massacre, which was a massacre with black community in
Speaker 1: Levy County, Florida in nineteen twenty three. Right, and also
Speaker 1: satisfy the scholarship Fund, and the governor when he's signed
Speaker 1: it talked about the state shame and moral responsibility. So
Speaker 1: the state itself, in my view, to its credit, you know,
Speaker 1: recognize this history and recognize it in the way that
Speaker 1: they provided what they regarded, you know, really broadly as
Speaker 1: sort of a moral compensation for this harm that was
Speaker 1: part of for it at the time, and as of yesterday,
Speaker 1: some may argue that there's a through line between that
Speaker 1: violence and what happened. And so I think it's important
Speaker 1: for Pridians is a very diverse state, to be able
Speaker 1: to have these conversations in sort of an unfettered setting,
Speaker 1: and for responsible employers who now have diverse workforces. I
Speaker 1: think it provides a lot of scary, scary exposure for litigation,
Speaker 1: and that's why seeing challenged them of the person.
Speaker 3: Another issue of the plaintiff's brought up was that this
Speaker 3: law is overly vague. I mean, it's hard to tell
Speaker 3: exactly what you can say in these diversity trainings and
Speaker 3: what you can't say.
Speaker 1: Put on my point to side hat that much. But
Speaker 1: I'm like, oh, if I were a cynical plaint to
Speaker 1: side lawyer, it could be a gravy train in a
Speaker 1: lot of ways that I don't think that the state
Speaker 1: really thought through very well. But putting that hat aside,
Speaker 1: putting on either my employer hat but also my professor has,
Speaker 1: it's hard to make heads and tail. So a lot
Speaker 1: of the elements start to talk about whether I think
Speaker 1: the state sort of started to make conceptions. But no,
Speaker 1: you can talk about this, you just can't endorse it.
Speaker 1: But at what point does triggering the discussion constitute an endorsement.
Speaker 1: I don't think that's clear right in the State's like,
Speaker 1: look at the dictionary, but I don't think that's clear.
Speaker 1: I don't think that would be cure for me, as
Speaker 1: a professor who assigned the color of the law, who
Speaker 1: assigned the new GYMP pro which argues us the semis
Speaker 1: discrimination and the criminal justice system and requires the devil
Speaker 1: and the growth, which is about Thirdgood Marshall in Florida
Speaker 1: in the nineteen forties, navigating the realm of racial violence
Speaker 1: in that state, and I endorsed that book, and that
Speaker 1: book talks about a lot of these issues. You know,
Speaker 1: I don't know at what point are you like to
Speaker 1: doors in the book or you're just like, oh, well
Speaker 1: read able to talk about it and you know whatever.
Speaker 1: As a professor, I think that some of the politicians
Speaker 1: completely don't get this way you want is you want
Speaker 1: to have a road best discussion from abroad range of perspectives.
Speaker 1: I think what this legislation does in a state that's
Speaker 1: very diverse, it makes any conversation about race a gender,
Speaker 1: either at the university or in the workplace, you know,
Speaker 1: fraught with their.
Speaker 3: Florida also said, well, this law only applies if the
Speaker 3: diversity training is mandatory for employees, And one of the
Speaker 3: judges said, how do you train an employee if they
Speaker 3: aren't required to go? But suppose it's not mandatory.
Speaker 1: I'm going to basically express something that I've expected me
Speaker 1: by employers, which actually think makes a lot of sense.
Speaker 1: There's sort of damned that they do and damned if
Speaker 1: they don't. Right, So, if you take something like sexual
Speaker 1: harassment and the post me to era, and that is
Speaker 1: a form of the EMI training, if you can de
Speaker 1: sextual harassment training. The US Supreme Court law encourages you
Speaker 1: to do that, to take voluntary measures Act compliance, to
Speaker 1: have a policy to address these issues. And those training
Speaker 1: can actually and I think should include a discussion about
Speaker 1: gender violence in our society and deal with issues of
Speaker 1: gender insects. But potentially, if you say something that is
Speaker 1: viewed as too sweeping, if you make it sound like
Speaker 1: women are by and large work, I think it's statistically
Speaker 1: true more likely to keep get some tender violence by men.
Speaker 1: Then the other way around, you can get to step
Speaker 1: in trouble unders fact. And then even more broadly, I think,
Speaker 1: but Betn and I training, I think the whole idea
Speaker 1: of that is to sort of build teams and to
Speaker 1: create a productive workforce and get people working together.
Speaker 2: Right.
Speaker 1: There's still a lot of segregation in this country, but
Speaker 1: the workforce and w people come together. And as an employer,
Speaker 1: you want people working together productively. You want who wants
Speaker 1: them working together as teams, and sometimes that requires it
Speaker 1: you navigate a lot of the issues that exist from
Speaker 1: outside of the workplace that are brought into the workplace. Right.
Speaker 1: And so you know, in the state of Florida, as
Speaker 1: I mentioned, there was an apparently race based shooting that
Speaker 1: you know, the city of Miami about thirty four years
Speaker 1: ago was wrapped by numerous incidents of civil unrest following
Speaker 1: shooting by the police department of African American men, and
Speaker 1: people are talking about that, right, and people have opinions
Speaker 1: about that, and people think about that, and they bring
Speaker 1: that into the workplace, and for you in the workplace
Speaker 1: to try to navigate, you know, these distant views from
Speaker 1: the disperate backgrounds and disperate perspectives in order to build
Speaker 1: a team that is now frought with Carol, it's really
Speaker 1: hard to say, well, Okay, we're going to do this training,
Speaker 1: but only only for people who want to go right.
Speaker 1: We're going to have sexual harassment training calling people, so
Speaker 1: we're going to have racial harassment training, but only for
Speaker 1: people who want to go right. Otherwise it's optional. You know,
Speaker 1: I think employers with a lot of the policies, a
Speaker 1: lot of their training that almost like undertupts the purpose
Speaker 1: of training in the first place.
Speaker 3: Do you have a feeling for how the Eleventh Circuit's
Speaker 3: going to rule on this.
Speaker 1: It's kind of part of tell where court's going to
Speaker 1: go on that. What I would predicted Regardless of how
Speaker 1: it goes, there will probably be petitions for either end
Speaker 1: Bank review or for Supreme Court review. I hate to
Speaker 1: make predictions, you know. I think for the statements is
Speaker 1: a real Updill battle and a very Compton battle. But
Speaker 1: I think it's fair to say that, you know, he's
Speaker 1: had a First Amendment problem in the courts, not only
Speaker 1: in this area, you know, but in other areas. And
Speaker 1: I think I think part of the problems here, and
Speaker 1: this is me putting on my loficecor hat is I
Speaker 1: think that the performative nature of the politics here, the
Speaker 1: attempt I think, you know, established a brand, took testaments over.
Speaker 1: I think kind of serious drafting of legislation and thinking
Speaker 1: of through and you know that happens a lot. The
Speaker 1: politics of legislation will often lead to bad space instead
Speaker 1: of the careful lawyering that I think you need to do.
Speaker 1: And that's legislations that's not going to cough tax there's
Speaker 1: a lot of money and then ultimately struck down. And
Speaker 1: so I'm in Arizona, so I've seen a lot of
Speaker 1: that in Arizona. Arizona went through a period in the
Speaker 1: twenty tenth where it was really the ground Bureau of
Speaker 1: a lot of anti immigration legislation and also you know
Speaker 1: bands against Mexican emergeny studies and it's only banned, and
Speaker 1: almost all of that got stuck down in the court,
Speaker 1: as you know, violence of the constitutions, right, And so
Speaker 1: I just think that sort an invest the strategy before
Speaker 1: jun to the California Now you know, Texas jumping on board.
Speaker 1: And I just think that sometimes and I can't say
Speaker 1: this is happening now, but I think sometimes the politicians
Speaker 1: are like, oh, even it gets struck down and all
Speaker 1: the sort of last court, it's still kind of a
Speaker 1: win one.
Speaker 3: Well, we'll see whether it's a win at the eleventh
Speaker 3: Circuit or not. Thanks so much for being on the show. David.
Speaker 3: That's David Lopez, the former General Counsel of the EEOC.
Speaker 3: He's a professor at Rutgers Law School and a visiting
Speaker 3: professor at Arizona State University. And that's it for this
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.
Speaker 3: You can find them on Apple Podcasts, Spotify, and at
Speaker 3: www dot Bloomberg dot com, slash podcast, Slash Law, And
Speaker 3: remember to tune into the Bloomberg Law Show every weeknight
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and
Speaker 3: you're listening to Bloomberg