Do Laws Against Workplace Harassment Violate Free Speech?

The Florida ruling could have been a bold conceptual challenge to employment-discrimination laws, albeit one that goes against a towering edifice of Supreme Court precedent, according to which combating racism and sexism is important enough to justify some speech restrictions in workplaces. But Judge Walker’s opinion doesn’t deserve credit even for such a quixotic stand. It protects from liability only racial insults that are “widely accepted” in elite academic and corporate settings.

The law in question, the Stop WOKE Act, prohibits employers from subjecting their employees to programs like “diversity, equity and inclusion” training that deems one race “morally superior” or attribute inherent and unshakable characteristics to individuals based solely on their race—such as white privilege or collective racial guilt. In short, the law targets classic indicators of bigoted speech, attributing traits, primarily negative, to individuals because of their race.

As a legal matter, discrimination against whites is already verboten, as it is against any other group. But it is undeniable that, as a cultural matter, bigotry against some groups bears far less stigma than bigotry against others. A set of theories and philosophies has gained prominence that claim stigmatizing members of presumptively dominant groups (especially whites, but increasingly also Jews and Asians) is not only acceptable but virtuous.

Regardless of success such theories have enjoyed in the academy, such speech—especially when endorsed by someone in a position of power, such as an employer—can be unpleasant enough to create a hostile work environment under Title VII of the Civil Rights Act of 1964. The only need for the Florida law is to make clear what should go without saying: Racially hostile speech in the workplace is no less prohibited when made by an inclusion officer with an advanced degree than when made by loading-dock foreman

Archie Bunker.

Even Judge Walker concedes that “a diversity and inclusion training could be so offensive, and so hostile to White employees, that it could create a hostile work environment,” which is “already illegal.” So to overturn a law that says just that, he resorted to splitting hairs. Under federal law, an employer can be liable under the hostile-workplace theory for racist comments or jokes made by a few employees without his approval—with the catch that such comments must be “severe and pervasive.” The Stop WOKE Act, however, has no explicit pervasiveness requirement. Judge Walker speculates, absent any evidence, that even the “slightest endorsement” of white-privilege theories in the workplace could lead to liability under the Florida law.

This is disingenuous. Title VII also contains no textual limitation to “pervasive” conduct. On its face, the hostile work environment theory—itself a judicial gloss on Title VII—could sweep in any comment on race. But the Supreme Court added the pervasiveness limitation to avoid forcing an unreasonable and constitutionally tenuous construction on the statute. Judge Walker did the opposite. He adopted the broadest and most inane reading of Florida’s statute, without any indication that the state would interpret it that way, to cast constitutional doubt on it. Rather than find the law void for vagueness, he found it vague for voidness (to borrow an expression from the lawyer and teacher Barry Alberts).

The Florida law makes reasonably clear what it seeks to protect employees from, with Gov.

Ron DeSantis’s

office pointing to several examples of major corporate diversity training about inherent white privilege. This isn’t about banning water-cooler conversations on the 1619 Project or outlawing cruel jokes by fellow employees. It’s about training and other kinds of indoctrination material pushed on employees in an employer-sanctioned setting. There is often overwhelming pressure for employees to accede to the views preached in such sessions. Such conduct, endorsed and even encouraged by a company, can satisfy a pervasiveness requirement more easily than the casual banter of co-workers.

Florida’s law tries to capture in statutory language the array of bigoted practices that are central to these programs. Throughout the first seven paragraphs of the law, it limits its reach to theories that impute characteristics not only to a race but to individuals as members of a race. The final section, which focuses on the idea that “merit” and “hard work” are fundamentally racist constructs, lacks such a limitation. That paragraph raises constitutional concerns, but lawmakers could fulfill their stop-woke mission without that broad language.

There is no justification for Judge Walker’s complete ban on enforcement of the law. The Florida Legislature isn’t required to be silent in the debate over what constitutes racially hostile speech and conduct, or to cede the determination of what constitutes discrimination to academic theorists and bestselling authors like

Ibram X. Kendi.

Mr. Kontorovich is a professor of law at George Mason University Scalia Law School.