There has been increasing conflict between employers and employees over the wearing of Black Lives Matter t-shirts, protective face masks, and other attire in the workplace. Some employees have even faced discipline, including loss of their jobs, for doing so.
A class action lawsuit was recently filed against Whole Foods charging the company with selectively enforcing its dress code policy in violation of the civil rights of employees who wear BLM masks.
Inconsistent policy enforcement
In prohibiting BLM attire, employers have raised, like Whole Foods, that it violates their dress code policies. Others have asserted that wearing the attire violates workplace conduct policies by engaging in behavior that is “political,” “disruptive,” and “divisive.”
Employers might be inconsistently enforcing their policies. For example, some employers have allowed employees to wear attire celebrating LGBTQ pride or promoting “Go Red for Women.” Others have allowed other “political” behavior or advocacy.
Disparate treatment based on race in the workplace violates federal and state civil rights laws. For an employer to discipline an employee for wearing BLM attire but allow other advocacy attire is potentially discriminatory, both against Black employees protesting racial inequality and against other employees who are advocating on their behalf.
Employees also have the right to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act. It can be unlawful retaliation for an employer to discipline an employee who wears BLM attire for the purpose of opposing race discrimination on behalf of Black employees in the workplace.
Employees have important reasons for wearing BLM attire in the workplace. They spend a lot of time at work and can positively influence the behavior of their employers, coworkers, customers, and others. And many employers want to support the BLM movement. A constructive dialogue between employers and employees about what employees want to wear and why would go a long way toward avoiding the conflict that can result in morale problems, lost employees, and litigation.
Written by: Laura Lindner
For more than 27 years, Laura has represented employers in employment litigation cases. She is a tenacious and successful litigator who has tried many cases throughout the country and has resolved many disputes through tough, skilled negotiation. She is known for providing clients excellent advice, unmatched service, and steadfast emotional support throughout difficult employment situations.