Companies differ on BLM masks in the workplace

As companies declare support for the Black Lives Matter movement, some are not allowing employees to wear masks or other attire that express solidarity with the cause.

Employees have pushed back against what they say is an attempt to silence them — staging protests at Whole Foods, denouncing Trader Joe’s on Twitter, calling for boycotts of Taco Bell and Starbucks — while their employers defend the restrictions as a matter of dress code.

Tensions could flare at more workplaces as they reopen and the mask-wearing forced by the pandemic collides with a national reckoning on racial injustice sparked by the death of George Floyd, a Black man, at the hands of white police. In New York, a Target customer was asked to leave after confronting an employee wearing a Black Lives Matter mask and asking if she didn’t think all lives matter, according to reports of the June 25 incident.

Employers, reluctant to alienate customers or employees, may hope banning personal statements across the board will keep conflict at bay. But they must consider the legal ramifications of restricting certain forms of expression, and the cost of bad publicity and poor employee morale.

“This is definitely a challenge employers are going to face, if not now it is likely they will face it in future,” said Lauren Novak, an attorney with Schiff Hardin in Chicago who represents employers in labor and employment cases.

Private employers have the right to regulate what employees wear to work. But restricting some forms of expression could risk violating labor or employment law. Employers should consider whether employees are wearing Black Lives Matter masks to protest racially discriminatory working conditions, which could be considered protected activity under the National Labor Relations Act, Novak said.

Employers could also face allegations of discrimination if the dress code policy isn’t consistently enforced and disadvantages people based on race or another protected class, said Fern Trevino, an employment lawyer in Chicago who represents workers.

They could run into issues if attire celebrating LGBTQ pride is permitted but Black Lives Matter is not.

“Employers should inform employees of the dress code policy in writing and should assure the policy is consistently and equitably enforced,” Trevino said.

A central concern for employers is that allowing employees to wear Black Lives Matter apparel will provoke other employees to don All Lives Matter, Blue Lives Matter or other potentially divisive slogans, Novak said. Employers have to decide whether they will take a stance against those viewpoints, she said.

“I think most employers would allow Black Lives Matter masks but they fear what other employees might wear to disturb the workplace,” Novak said. “So by creating a neutral policy it eliminates people wearing masks that are clearly offensive.”

For a smaller employer out of the limelight, a dress code prohibiting all forms of expression could be a safe bet.

But companies in the public eye may not be able to stay neutral if they are accused of failing to support their Black employees, Novak said.