Page 35 - BusinessWest March 17, 2021
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Don We Not Our BLM Apparel
Court Rules Employer Can Bar Politically Motivated Clothing
By Tim MAurphy
mericans 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 sup- porters 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.
out? 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 neg- atively 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.
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 rea- sons. 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-discrimina- tion laws.
On its face, this decision makes sense. Gener- ally speaking, an employer can lawfully imple- ment and enforce a dress code, as long as it is applied equally to all employees. This is particu- larly 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
Continued on page 37
 “Can employers enforce a dress code requiring employees to re- frain from wearing politically motivated clothing? Yes.”
Beginning around June 2020, in the wake of George Floyd’s kill- ing and subsequent nationwide protests, Whole Foods employees began wearing masks and other attire with BLM messaging to work. Some employees were disci- plined for violating the dress-neu- tral dress-code policy, while others were sent home without pay and directed to change clothing. Sever- al employees quit, and others kept wearing BLM clothing to protest the store’s actions.
    But what happens when supporters wear this clothing to work? Can employers enforce a dress code requiring employees to refrain from wear- ing politically motivated clothing? Yes, a recent Massachusetts federal court determined. Even so, is it worth the negative publicity and PR fall-
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 “vis- ible slogans, messages, logos, and/or advertising” against black employees.
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