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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.

As many companies feel the BLM movement aligns with their company values and reinforces their commitment to their diverse employees, management, customers, and partnerships, they have decided to permit employees to express themselves with their apparel. For example, after initially banning any BLM apparel, Starbucks reversed its decision and decided to print 250,000 company-branded BLM shirts. They plan to make the shirts available to all employees, similar to how the company celebrates Pride month.  Additionally, Wawa changed its policy banning BLM apparel and now allows employees to wear pins to express support for the BLM movement.    Other companies have struggled with the issue.  A Chicago-area Costco employee wore a Black Lives Matter mask to work but, according to the employee, was told to stop wearing it because it was “political,” “controversial” and “disruptive.”  Eventually, the employee was given permission to wear a mask depicting a raised fist, as long as it didn’t include words.

Some employers are concerned that allowing employees to wear BLM masks or shirts will prompt others to want to wear “Blue Lives Matter,” “White Lives Matter,” or other socially or politically charged apparel, thus inflaming the workplace environment and potentially causing unnecessary and potentially dangerous disruptions.  Additionally, companies are concerned with alienating potential customers who may have differing opinions, especially when the companies are struggling to attract business due to the pandemic.  Employers who restrict what their employees wear should do so in a non-discriminatory, consistent and fair manner.

Many employers have decided to impose (or have maintained) a neutral policy which proscribes social or political messaging of any type, mitigating the impact of an assertion that it has discriminated against one group or favored another.  While enforcing a neutral policy could appear to be an easy solution, it may prove difficult in practice as customers and the public are sensitive to aligning (or distancing) themselves with brands based on the companies’ social views.

As the economy (hopefully) continues to re-open, more employers will be faced with this issue and should weigh the risks of adverse publicity and employee spirits when deciding which approach to implement.  While there are clear legal implications, ultimately, employers should view this issue from a business perspective and implement their policy in a thoughtful and consistent manner.