The Black Lives Matter (“BLM”) movement has sparked significant emotion in the past few months. As the NBA restarts the season, TV viewers will see the phrase emblazoned on the courts and on some players’ jerseys. What you won’t see on TV are the large employers which have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel. For example, last week, several Whole Foods employees initiated a class action lawsuit claiming they have been subjected to racial discrimination and retaliation for wearing BLM masks and other clothing, even after Whole Foods reversed its initial prohibition on BLM masks.
Some employees assert that their right to free speech should allow them to wear whatever they please to work, not realizing that the First Amendment only protects them from unreasonable restrictions on speech by the government. Legally, private employers may restrict speech as long as it does not violate other laws.
For example, if employees are engaged in concerted activity regarding the terms and conditions of their employment, the National Labor Relations Act (“NLRA”) may protect their conduct and speech. Wearing a BLM mask could be permissible under the NLRA if employees were protesting workplace discrimination, but that’s not generally what we’ve been seeing. Rather, employees want to express their support for the social movement that is embodied by the Black Lives Matter slogan. Therefore, when considering restrictions on employee dress code, as with many other issues, employers must evaluate potential legal, social and business concerns all at once.