The January 6, 2021 protest in Washington, D.C. raises questions about participation of employees in protests that may turn into riots. Unlike governmental employers, private businesses have no "free speech" obligations to their employees participating in such protests. However, other legal issues can arise as to subsequent actions against those protesting.
First, some states and localities have laws that provide protection for lawful off-duty conduct. In some cases employees may have protections against terminations or discipline not for "just cause" such as those covered by a collective bargaining agreement. Some employers would discipline or terminate protestors who engage in criminal conduct or display hate symbols. A hate symbol might include carrying a noose, for example. But the situation gets much more cloudy if the protestor merely marches next to someone carrying a noose.
Sometimes the protests are not off the job, but on the job. A particular application of this concept may occur when someone wears a face mask or other attire bearing Black Lives Matter or some similar messaging. A recent federal district court ruling addresses policies of Amazon and Whole Foods Market that prohibit workers from wearing face masks or other attire bearing Black Lives Matter messaging. Firth v. Whole Foods Mkt., Inc., D. Mass., No. 1:20-cv-11358, 2/5/21. The decision dismissed race discrimination allegations of 28 lead plaintiffs in a proposed class action under Title VII, because being disciplined for wearing such clothing does not describe a violation of job discrimination law because Title VII "does not protect free speech in a private workplace." Further, the plaintiffs did not allege that either Amazon or Whole Foods would have treated their BLM-mask wearing more favorably if they had been of a different race. In contrast, in a case involving a public employer, a federal court in Pennsylvania ruled that a ban on employees wearing COVID-19 face masks with political messages, including support for the Black Lives Matter movement, are likely unconstitutional. Transit Union Local 85 v. Port Auth. Of Allegheny Cty., W.D. Pa., No. 2:20-cv-01471, 1/19/21. The public employer port authority prohibited its employees from wearing uniform adornments like buttons and stickers with "political or social-type protest" messages. The fact pattern revealed that when several employees started wearing the "Black Lives Matter" slogan, an employee complained, asking management how it would feel if he wore a "White Lives Matter" mask in response. The Port Authority said it feared allowing employees to wear BLM masks would cause disruption, likely from employees wearing "competing" masks.
This is part of our March 2021 Newsletter.
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