Over the past couple of months, we have been asked by our clients if there been any court rulings on whether companies can limit employees from wearing Black Lives Matter and other social justice attire to work.

The answer is Yes.

During this pandemic and the political and social unrest underlying the Black Lives Matter (BLM) movement, many employees have come to work wearing BLM masks and other attire. Some companies initially banned all BLM attire on the grounds that it could alienate prospective customers with differing opinions, lead to misunderstandings, and incite workplace violence.

However, they later changed their decision in light of public backlash.

Others continued to ban BLM masks and other attire by relying on companywide dress code policies that prohibit employees from wearing masks and clothing with any visible slogans or messages unrelated to the company. These workplace policies recently came under fire when a group of employees filed a class-action lawsuit against a grocery chain, alleging unlawful discrimination and retaliation for wearing BLM attire.

Specifically, the workers alleged that the employer rarely enforced its dress code policy and that it did not prohibit workers in the past from wearing clothing with messaging unrelated to the company, such as Pride pins or apparel supporting LGBTQ+ workers and even a SpongeBob SquarePants mask.

According to the workers, the employer selectively enforced its policy to target and suppress BLM messaging, and, thus, discriminated against Black employees and others associating with and advocating for Black employees in violation of Title VII of the 1964 Civil Rights Act. The workers also alleged they were retaliated against for continuing to wear BLM apparel and protesting the dress code policy.

Court Decision and Appeal

On February 5, a federal district court ruled in favor of the employer as to the race discrimination claims. Applying the rationale that the U.S. Supreme Court recently adopted in holding that Title VII prohibits discrimination based on sexual orientation, the court reasoned that the workers had not alleged they were treated differently “because of” their race.

Indeed, the court found it significant that the workers admitted their employer disciplined them for wearing BLM attire regardless of their race. The court also rejected the workers’ alternative theory of associational discrimination because Title VII cannot be read expansively enough to protect one’s right to associate with a given social cause, even a race-related one, in the workplace.

According to the court, Title VII also does not protect free speech in the private workplace. Finally, the court dismissed all of the workers’ retaliation claims (with the exception of one alleging various potentially protected activities preceding the worker’s termination), finding again no allegation that the workers were disciplined or treated differently due to their race.

In conclusion, while the court noted it would have been “more honorable” for the company to “enforce [its] policies consistently and without regard for the messaging, particularly where the messaging selected for discipline conveys a basic truth,” the company’s selective enforcement of its dress code policy did not translate to an actionable race discrimination claim.

Following the court’s decision, the workers filed a notice of appeal on March 4 to address an issue of first impression: whether a Title VII claim premised entirely on wearing BLM attire is legally cognizable. It remains to be seen whether and how the appellate court will rule on this intersection between the BLM movement and Title VII.

Key Takeaways

In light of the court’s decision and the pending appeal, below are several key takeaways and steps that all employers should consider:

  • Review and update workplace policies to ensure they are “neutral” in prohibiting social or political messaging of any type to mitigate the impact of allegations of unfair treatment;
  • Train management to ensure that policies are applied consistently and uniformly, and, particularly with respect to union members, ensure that the employees engaging in self-expression are not disciplined for protesting workplace discrimination; and
  • Post statements and continue to remind employees of the company’s commitment to and initiatives toward diversity, equity, and inclusion in the workplace.

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