Cases are starting to come out now dealing with the subject of whether an employer can ban buttons pertaining to the Black Lives Matter (BLM) movement. The cases involve various legal theories such as the concerted activity doctrine under the Labor Act, the discrimination laws, and the free speech laws pertaining to public employers under the First Amendment.
Consider the following complications. If an employer allows BLM buttons, must it also allow White Lives Matter buttons, Blue Lives Matter buttons, etc.? Can the employer discriminate among people wearing buttons based upon the message? Does allowing these type buttons create a "hostile environment" for others? The questions are numerous and quite legally complicated.
In a case involving the National Labor Relations Board (NLRB), the Board's General Counsel has alleged that employers violate federal labor law by preventing employees from displaying the message "Black Lives Matter" on their clothing. The NLRB General Counsel believes that racial issues "directly impact the working conditions of employees." In a June ruling involving Home Depot, an NLRB administrative law judge found that the Black Lives Matter messaging lacked "an objective and sufficiently direct, relationship to terms and conditions of employment" to be legally protected. He wrote that the message "originated, and is primarily used, to address the unjustified killings of black individuals by law enforcement and vigilantes. To the extent the message is being used for reasons beyond that, it operates as a political umbrella for societal concerns and relates to the workplace only in the sense that workplaces are part of society."
A similar case is pending against Whole Foods, contending that the dress code that workers were only permitted to wear name tags and approved promotional buttons, except in the case of legally-protected union-related buttons, violated the workers' rights to engage in activities "for their mutual aid and protection." That case is pending before an administrative law judge.
In June, the U.S. Court of Appeals for the First Circuit ruled that the lower court was correct to dismiss an action against Whole Foods for discrimination from the disciplining of employees who wore Black Lives Matter face masks to work, holding that there could plausibly be non-race-related reasons for the dress code enforcement. The court relied in its ruling on the "common sense" conclusion that the company had non-race-based reasons prohibiting the wearing of the masks. The workers had challenged Whole Foods' practice of sending home, docking pay from and terminating some employees who wore a mask supporting the racial justice movement. The lower court judge had found the claims did not amount to a civil rights act violation, as that law "cannot be read expansively enough to extend it protections to employees who have been disciplined for wearing clothes that violate a company's dress code . . . ."
On the other hand, the Third Circuit Federal Court of Appeals in a case involving the Allegheny County Port Authority, found the public employer's policy prohibiting political and social adornments on employee uniforms that was updated to include Black Lives Matter messaging, was likely unconstitutional. The Port Authority had long prohibited its uniformed employees from wearing buttons "of a political or social protest nature," concerned that such masks would disrupt its workplace. The court found that wearing of such masks was protected under the Constitution as free speech.
Editor's Note - The Constitutional issue only applies to public employers, state or federal. Therefore, private employers need be primarily concerned with the NLRB doctrine of concerted activity and the discrimination laws. It is likely that bans on such political and social issues will survive challenges under the discrimination laws, but the outcome of the NLRB case law under the current Administration is uncertain. It is likely that whatever dress code policy employers choose in this regard must be enforced objectively, however, as selected enforcement may likely result in liability.
This is part of our August 2022 Newsletter.
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