Employers face several factors when deciding whether to allow employees to wear clothing with political or social messaging, like Black Lives Matter apparel. Katz, Marshall & Banks LLP’s Jolena Jeffrey looks at the rights employees have in supporting social justice movements at work and how employers should react when, or if, a customer complains.
Thousands of Americans are actively engaging in social justice movements and standing up for causes such as Black Lives Matter. Individuals are showing their solidarity not only by protesting but also by displaying apparel with Black Lives Matter messages on the job.
As a result, employers are facing renewed questions about employees’ rights to display support for a political party or movement on the job, and how they should respond to employee demands.
Generally, an employer can restrict an employee from wearing clothing with a political message if it affects productivity or does not conform to the employer’s uniform/dress code policy. The First Amendment provides no protection for employees while on the job, unless they work for the government, because the First Amendment only applies to governmental restrictions on speech.
Despite the absence of a clear legal right to wear clothing with political messages, many employees are doing so anyway. As work places begin to reopen after the Covid-19 pandemic, many employees are showing up with face masks and shirts proclaiming Black Lives Matter.
Many employers have responded to the increased number of employees wearing Black Lives Matter apparel by arguing that these messages are distracting political statements and conflict with company dress code policies. Even if employers’ restrictive policies are legal, by restricting certain forms of expression, companies are risking the costs of bad publicity, poor employee morale, and even protests.
For example, Starbucks initially forbade their employees from wearing Black Lives Matter paraphernalia, claiming it incites violence, creates divisiveness, and does not conform to their dress code. Starbucks recently walked back this policy after a BuzzFeed article revealed this position and incited public condemnation.
The coffee giant has used the publicity generated to create and distribute roughly 250,000 Black Lives Matter T-shirts showing solidarity for the movement and changing the public’s perception.
On the other hand Whole Foods, which also prohibited Black Lives Matter messaging, is not changing its position. Whole Foods insists that its dress code, which prohibits clothing with visible slogans or messaging, does not allow for any apparel showing affinity for the Black Lives Matter movement. Whole Foods believes this policy is essential for it to operate in a customer-focused environment—the company is currently facing protests in at least three states.
Companies should be aware that, if they have already made allowances for attire celebrating other movements but not the Black Lives Matter movement, they may face allegations of race discrimination.
Conversely, some employers argue that allowing employees to wear Black Lives Matter pins or masks would force them to allow other employees to wear things such as Blue Lives Matter or Make America Great Again shirts, which might create other conflicts in the workplace.
Changing company policies and allowing employees to assert political messages on their work apparel can create positive public reception, but employers fear such tactics may open them to customer complaints or lawsuits. Recently, a Target customer in Long Island, N.Y., was asked to leave the store after verbally accosting a Target employee who was wearing a Black Lives Matter mask. The customer asked the employee if she did not think all lives matter.
It is understandable that many employers, especially those whose employees interact with the public, will opt for barring all messaging. That approach may help to create a neutral work environment where others would not be incited to wear offensive items or to verbally assault staff members.
However, many employees argue that the Black Lives Matter movement, although having political undertones, is more appropriately classified as a human rights movement. Racism, white supremacy, and police violence against African Americans are historic evils that transcend political parties and require more than political solutions.
The jury is still out on whether an employer should or should not allow employees to wear Black Lives Matter apparel. For small businesses and start-ups, prohibiting all messaging and having a clear non-discriminatory dress code may be the best course going forward.
However, larger companies such as Whole Foods should look more closely and consider changing their policies to reflect sensitivity to the current concern with the prevalence of racism in all aspects of American life.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jolena Jeffrey is an attorney at Katz, Marshall & Banks LLP, a plaintiff-side employment and whistleblower law firm based in Washington, D.C. Previously, she served as an assistant district attorney at the Queens County District Attorney Office in New York.
