Don We Not Our BLM Apparel
By Tim Murphy
Americans across the country have been actively engaging in the Black Lives Matter (BLM) social-justice movement, which advocates against incidents of racially motivated violence police. Often, BLM supporters will demonstrate their commitment to the movement not only by protesting, but also by wearing apparel, such as T-shirts and face coverings, with BLM messaging.
But what happens when supporters wear this clothing to work? Can employers enforce a dress code requiring employees to refrain from wearing politically motivated clothing? Yes, a recent Massachusetts federal court determined. Even so, is it worth the negative publicity and PR fallout? You be the judge.
The case involved the well-known Whole Foods grocery store, and a group of nearly 30 Whole Foods’ employees who claimed to be negatively impacted by the store’s “neutral” dress-code policy, which prohibited employees from wearing clothing with visible slogans, messages, logos, and/or advertising that are not Whole Foods-related.
“Can employers enforce a dress code requiring employees to refrain from wearing politically motivated clothing? Yes.”
Beginning around June 2020, in the wake of George Floyd’s killing and subsequent nationwide protests, Whole Foods employees began wearing masks and other attire with BLM messaging to work. Some employees were disciplined for violating the dress-neutral dress-code policy, while others were sent home without pay and directed to change clothing. Several employees quit, and others kept wearing BLM clothing to protest the store’s actions.
Then, a group of 27 employees filed a lawsuit against Whole Foods, accusing the store of racial discrimination. They claimed Whole Foods was selectively enforcing its dress code banning “visible slogans, messages, logos, and/or advertising” against black employees.
Last month, a federal District Court judge dismissed the race-discrimination claims. The court was not convinced that Whole Foods was enforcing the policy based on race-related reasons. Instead, it was enforcing a neutral dress-code policy with no consideration to race. The court noted that, “at worst, they were selectively enforcing a dress code to suppress certain speech in the workplace.” The judge went on to state that, “however unappealing that might be, it is not conduct made unlawful” by anti-discrimination laws.
On its face, this decision makes sense. Generally speaking, an employer can lawfully implement and enforce a dress code, as long as it is applied equally to all employees. This is particularly important when violations of the dress code negatively affect productivity or lead to employee disputes. As far as political speech is concerned, the First Amendment provides no protection for employees unless they work for the government, because the First Amendment applies only to governmental restrictions on speech.
Additionally, in Massachusetts, there are no state laws or protections for speech in a private workplace. It also appears there was no evidence in this case supporting the argument that Whole Foods was selectively enforcing the dress-code policy against black employees.
Given the current political climate, employers may be left wondering whether Whole Foods and other retail employers are making the right move by enforcing dress-code policies in a way that restricts political and socially progressive speech. Certainly, there are arguments to be made that these policies are geared toward improving customer relations and eliminating politically charged disputes between workers and customers. Last summer, much news was made about a customer in Target berating an employee wearing BLM attire with questions about whether “all lives matter.”
The same can be said for employee relations. It is not hard to envision heated disputes around the water cooler over clothing that bears political or social-justice messages.
That said, this case has generated a lot of publicity for Whole Foods. And they are not alone. Starbucks had a similar dress-code policy that prohibited employees from wearing BLM attire and other clothing bearing political and social messaging. After protests and public outcry, Starbucks reversed its position and began allowing employee to wear T-shirts or pins supporting the Black Lives Matter movement.
Businesses need to pay careful attention to this issue. While the adoption of strict, ‘neutral’ dress codes appears legal, there could be unintended consequences, including irreversible harm to employee morale and negative public-relations nightmares.
Tim Murphy is an attorney with the Springfield-based firm Skoler Abbott & Presser, specializing in labor relations, union campaigns, collective bargaining and arbitration, employment litigation, and employment counseling; (413) 737-4753.