Furniture companies in the Sunshine State should proceed with caution
At a time when many, if not most, big U.S. companies are promoting diversity, including Amazon, Accenture, Johnson & Johnson and Mastercard, the state of Florida is doing all it can to make it difficult for employers even to talk about diversity, equity and inclusion (DEI). This has implications for any furniture company with a presence in the state.
Florida lawmakers earlier this month passed legislation restricting how race can be discussed in schools and in the workplace, including corporate training, workshops and seminars that cause anyone in the room discomfort or distress for “actions committed in the past by other members of the same race, color, sex or national origin,” according to the statute.
By supplying “any one” employee with an actionable claim based on the entirely subjective thresholds of “discomfort or distress,” the law makes companies operating in Florida vulnerable to spurious lawsuits from their employees. And much like a controversial anti-abortion law in Texas, which just survived a test at the Texas Supreme Court, Florida’s new law deputizes every resident of the state to enforce it rather than rely on the traditional and, presumably, more predictable levers of government regulation that include oversight by employment commissions.
Civil action is Florida’s (and Texas’s) preferred method for enforcing the law?
Regardless of “any one” person’s politics, Florida’s law, which not surprisingly passed along party lines, is ill advised and particularly bad for school teachers and employers, including those in home furnishings. Like so much legislation and state-level government intervention today, Florida’s law invents a problem in order to justify itself as a solution. This is, of course, what most advertising does, as well, so it shouldn’t surprise anyone to find out that the Florida law is just the latest product of a national branding campaign that uses Critical Race Theory (CRT) as the boogeyman out to get our children and employees.
Citizens United and corporate speech
While claimed as a victory by the proponents of this branding campaign, the law is prima facie incompatible with the First Amendment and, in particular, the U.S. Supreme Court’s interpretation of that amendment’s 45 words as articulated in its 2010 decision in Citizens United v. Federal Election Commission. This doesn’t mean companies shouldn’t worry about the new law; until that prima facie challenge comes, it will be the law of the state of Florida. And copycat states are lining up at the deli counter.
In allowing corporations to spend unlimited funds on elections as a matter of free expression, the closely decided (5-4) Citizens United decision more generally acknowledges corporate speech to be eligible for protection under the First Amendment.
With virtually no interpretation required, corporate training, including even what “any one” might declare for him- or herself as indoctrination, is categorically protected speech. A state’s efforts to censor or muzzle companies under the guise of “protecting” presumably white people from something they might characterize as angst will not survive prima facie constitutional scrutiny. It will not survive a court challenge on the basis of Citizens United.
Make no mistake, Citizens United isn’t good law, mostly because of the front door it opened to dark money in political campaigns and elections. The decision erased the value of any single vote at the ballot box. But it is the law.
Until that court challenge comes, U.S. companies with any presence in Florida (and probably soon in Texas, South Carolina, Tennessee, and Missouri) will need to proceed with caution with respect to addressing race, racism, gender, sexism, intersectionality and workforce diversity. This caution will be especially complicated for any company seeking also to redress complaints or grievances on grounds of discrimination, including instances where some action is required as part of a settlement agreement, consent decree or court ruling.
And, if your company is finding it difficult to find, recruit and hire top talent, well, in Florida it just got harder. Talent is found in all segments of the population, but this legislation will have a chilling effect on the Sunshine State’s ability to attract and retain a diverse workforce.
Perhaps most pernicious about the new law, which is titled, with no sense of irony, “Individual Freedom,” are the false premises on which it is based and the fallacies used by its supporters to advance what is a much broader cultural and, in many cases, religious agenda.
Hear the governor of Florida: “How is it not a hostile work environment to be attacking people based on their race or telling them that they are privileged or that they are part of oppressive systems when all they are doing is showing up to work and trying to earn a living? We believe this corporate CRT is basically corporate-sanctioned racism.”
That there is no such thing as “corporate CRT” is an inconvenient but ultimately meaningless fact for Governor DeSantis, who is using a classic straw man argument in manufacturing the very “disease” he claims credit for curing. His premise: Companies (and schools) are indoctrinating people with critical race theory. The seemingly logical response: Engaging in “corporate CRT” is racist, and the state has a responsibility to address racism.
The straw man in this fantasy is the obviously absurd distortion that CRT is, in fact, being taught anywhere but law schools and graduate programs.
DeSantis’s mind-melting fallacy should circle us back to the need for honest discussions about race, gender, ethnicity, sexuality and intersectionality, but of course Florida’s law and the Christopher Rufo-led branding campaign of which it is a product are a Trojan horse for a much larger political agenda. (For much more on this school choice-inspired agenda, see John Oliver’s insightful, very profane takedown from “Last Week Tonight” on HBO.)
The law, then, is a misdirection intended to demonize, not a logical statement based in fact. CRT isn’t taught in schools any more than Florida-based corporations are indoctrinating their white employees.
Obscured by the fallacy that corporations and public schools are teaching CRT is another fallacy, which is that CRT is in any way illegitimate or dangerous. The value of any systematic theory or framework is its ability to help us ask better questions and better understand our world. CRT has been around for 50 years; it’s proven itself durable, especially in legal analysis but also in several fields in the social sciences.
But that’s not the salient point here in an online publication for the furniture industry. The rub here is the state of Florida’s nimble, even gymnastic relationship with the First Amendment and the dangers it poses to employers in our industry, as well as the likely spread of efforts like this to exercise ideological control over corporate speech.
“Gymnastic” because out of one side of this state’s mouth comes law aiming to punish social media platforms who censor politicians who habitually propagate misinformation and disinformation. Out of the other side of that same mouth comes “Individual Freedom,” seeking to censor its corporations with the threat of angry white “victims” filing civil actions against their employers. No one will win in these disputes but the lawyers.
‘Freedom for the thought we hate’
Any thoughtful advocate of genuine freedom of expression, upon which genuine freedom of thought depends, should demand, at the very least, a more honest debate. McCarthyism sought to stamp out “dangerous ideas.” This new movement to censor and even punish what one very organized, marketing-savvy bloc of disingenuous school choice advocates believes are “dangerous ideas” is succeeding in shutting down debate.
As an undergraduate instructor of media law, I tell my students each and every semester that the First Amendment has no grandchildren, that each and every generation must negotiate for themselves what the amendment’s 45 words will mean in practice. This negotiation has turned into a hostage crisis.
And it’s un-American, because we don’t need to protect the speech we like; we need, in the words of the legendary U.S. Supreme Court Chief Justice Oliver Wendell Holmes, Jr., to protect “freedom for the thought we hate.” Our own right to freedom of expression is only as strong as that of our political or ideological opponent, and that goes for corporate training sessions, classrooms, social media, and anywhere else.
Thanks for listening.