National Post (National Edition)
Companies can have dress codes, but they can’t be discriminatory.
Office rules must be truly uniform
Executives across industries are sending companywide emails to their employees and releasing public statements expressing outrage over police brutality and acts of anti-Black racism. Never before have so many corporations taken such a public stance, with some CEOs loudly declaring that Black lives matter in statements and media interviews.
But many Black employees find these statements confusing and hypocritical as these announcements and statements of support are inconsistent with their own experiences in those very companies.
Starbucks Corp. was one such company that recently found itself confronted with accusations of hypocrisy. It had made public statements and social media posts supporting the Black Lives Matter movement, but sent an internal memo to employees not to wear Black Lives Matter T-shirts or pins while at work. Once news of these conflicting messages became known, the company faced intense backlash and quickly backpedalled.
The coffee chain, pivoting on a dime, is now producing 250,000 T-shirts with a Black Lives Matter design, and allowing employees to wear their own BLM clothing or attire, while awaiting the branded shirts.
Some feel that anti-Black racism is primarily an American issue, and that our country is tolerant and inclusive. But there have been enough cases in Canada to suggest otherwise.
Statistics Canada published a report in February demonstrating that Canadian Black adults are less likely to be employed than other adults.
It also reported that the gap in median annual wages had increased largely because the wages of Black workers did not grow as quickly as their colleagues. Studies show that racist biases and roadblocks exist not only in law enforcement, but translate into the workplace. Canadian Black employees face much of the same discriminatory pushback as their U.S. counterparts.
In this environment, it’s understandable then that some, particularly Black employees, want to demonstrate support for the Black Lives Matter movement at work.
Employers cannot prevent employees from supporting the movement on their own time. However, many employees want to know whether they can wear Black Lives Matter messaging at work. Generally, if you are allowed to wear T-shirts or personalized accessories at work on a regular basis, you can likely wear supportive Black Lives Matter materials as well.
The reverse is not true. Hateful and racist rhetoric is not legally permitted in the workplace. Companies can have dress codes, but they cannot be discriminatory nor enforced in racially discriminatory ways.
For example, it would be against the human rights code if a Black employee was fired for wearing a Black Lives Matter shirt, but a non-Black employee kept his job after wearing an ‘All Lives Matter’ shirt or even a T-shirt with another slogan.
In June, a City of Guelph, Ont. employee posted a profanity-laced message on a public “Overheard at Guelph” Facebook group, complaining about and mocking Guelph residents who attended a local BLM protest. The employee was placed on administrative leave pending an investigation of the social media comments. As a public servant and representative of the community while at work, the employee is legally held to a higher standard and more public scrutiny.
Employee messages cannot go against employer policies, which are inherently bound to the human rights code and anti-discrimination practices.
As such, employees and employers who make statements against Black Canadians
or anti-Black racism can face discrimination charges under the code. If an employee does not feel comfortable with or outright opposes BLM discussions in the workplace, they would need to evaluate what their employer’s statements or internal memos have addressed, and schedule discussions with their human resources representative to address their discomfort. Conduct that damages the employers’ brand is subject to discipline.
I have discussed employees’ responsibilities and consequences of employees’ social media posts in a previous column.
The level of support for the movement across the country would make it difficult for an employer to impede their employees’ support of Black Lives Matter. Not only have many companies made public or internal statements proclaiming their support for the movement, but actions taken to suppress or invalidate Black employees’ ability to wear supportive material at work risk discrimination claims against the employer.
In fact, the Ontario Public Service Employees Union has publicly supported the Black Lives Matter movement, and the government of Ontario has published an Anti-Racism Strategic Plan that was most recently updated in March 2020. The province’s actions to promote anti-racist strategies in the workplace, in conjunction with the growing BLM movement, will require employers to tread carefully when preventing certain clothing or accessories from being worn at work.
The Black Lives Matter movement is gaining momentum, and employees will want to continue to show their support at work. Employers can regulate employees’ dress code at work to a certain extent, such as imposing business-casual requirements or preventing employees from wearing graphic T-shirts at work, however they need to stay within the government and human rights policies. Employers need to be conscious of how they respond in these racially-conscious times.
Financial Post Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.