Workplace tensions flare over whether employees can wear Black Lives Matter masks

©Chicago Tribune

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 Long Island, 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 news reports describing 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.

In the Chicago suburbs, a Costco employee wore a Black Lives Matter mask to work after hearing about managers making racially insensitive comments to other employees at the warehouse. After working two shifts with the mask, the employee was called into a manager’s office in late June and told to stop wearing it because it was “political,” “controversial” and “disruptive,” the employee told the Tribune in an interview.

In a silent protest in the days that followed, the employee, who is Black, arrived at work wearing the mask, made sure people were watching, and flipped it inside out upon clocking in.

“For so long we have been taught that we cannot speak out against an unjust system that affects every aspect of our life,” said the employee, who has worked at Costco for over a decade and asked not to be identified for fear of retribution. “We are supposed to shut up and take it.”

Cell phone photos of Costco’s employee handbook that the employee provided to the Tribune show its dress code says only that employees must be “neat, clean and professional.” People identifying themselves as Costco employees have posted pictures of themselves on Facebook wearing attire celebrating LGBTQ pride.

Costco declined to comment or answer a list of written questions.

Last week, the Chicago-area employee was given permission to wear a mask depicting a raised fist as long as it doesn’t include words. The employee plans to make more such masks to distribute to co-workers who want them.

“Telling me that I cannot wear Black Lives Matter because it’s political or controversial is another way of being complicit in the systematic injustices that Black people in the US face,” the employee said in a text message. “It’s another way of letting me know that I truly do not Matter.”

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, concerted activity under the National Labor Relations Act, Novak said.

Employers could also face allegations of discrimination or creating a hostile work environment 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.

Some companies have responded to public pressure and are letting employees display their solidarity with the cause at work.

Taco Bell apologized after an Ohio employee who declined to remove his Black Lives Matter mask was fired from a franchised restaurant, saying “we believe the Black Lives Matter movement is a human rights issue and not a political one.” The fast food chain told USA Today that it doesn’t prohibit the wearing of such masks and is working to clarify its policies.

Starbucks quickly reversed course after BuzzFeed News published an internal memo explaining that Black Lives Matter buttons were verboten because they violated dress code policies forbidding attire that advocates for “political, religious or personal issues” and could be used to “amplify divisiveness.” The coffee giant had been quick to avow its commitment to Black Lives Matter as protests erupted over Floyd’s death, and committed $1 million to racial equity organizations. After the BuzzFeed report, Starbucks said in a letter to employees it was producing 250,000 T-shirts with a graphic expressing support for the movement, and employees could wear their own until those arrived.

Company-issued merchandise gives companies some control over the matter.

McDonald’s, which requires uniforms and provides plain masks for employees to wear, said it is making pins and bracelets available for employees who “want to show support to end social injustice.” The company had previously expressed solidarity with Black employees and promised to donate $1 million to the National Urban League and the National Association for the Advancement of Colored People in the wake of Floyd’s death.

But Faith Booker, a McDonald’s employee in Lakeland, Fla., said she hasn’t heard anything about these accessories. A co-worker was instructed to remove a Black Lives Matter mask a few weeks ago and no one has tried since, she said, but it’s important to her that the company support the wearing of such masks at work to amplify the cause.

“I have five kids, two of whom are boys, and my sons’ lives matter,” said Booker, 32, who is Black. “I don’t want them to go through everything that everyone is going through today.”

Other retailers have stood by their prohibitions on employees displaying Black Lives Matter messaging.

Whole Foods says that “in order to operate in a customer-focused environment,” employees must comply with its longstanding dress code prohibiting clothing with visible slogans, messages, logos or advertising that are not company-related. It provides face masks to employees if theirs don’t comply.

Whole Foods, which sent home two New Hampshire employees for wearing Black Lives Matter and “I Can’t Breathe” masks, has seen protests in Massachusetts, Philadelphia and Seattle over the issue.

Workers organizing at Whole Foods in Cambridge, Mass., accused the Amazon-owned grocer of “hypocrisy” and “performative, empty activism” for refusing to allow employees to wear the masks while publicly declaring support for the movement and committing $10 million to relevant causes. Sen. Elizabeth Warren, D-Mass., tweeted last week that she supports a resolution at the Cambridge City Council to support the Whole Foods workers’ right to wear the masks.

Trader Joe’s has also been accused, by people identifying as employees on social media, of sending workers home for declining to remove Black Lives Matter masks or pins. A Twitter account called Crew for a Trader Joe’s Union posted a script for what employees should say if confronted, including asking to see the written policy and questioning the company’s support for Black lives.

Trader Joe’s did not respond to a request for comment. Last month it issued a statement to the publication The North Star acknowledging that some employees “are choosing to speak up against racial and social injustice in a number of ways.”

“…We understand this is a time for us to use our voice, and we appreciate the desire to hear how we plan to take action, sooner rather than later,” it said. “It’s also critical that we take the time and steps that bring about the most meaningful change. When we say we’re committed to listening, caring, acting and continuously improving, we mean it.”

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.

Supporting Black Lives Matter, but not All Lives Matter, attire could open an employer up to a discrimination claim. But attorneys doubt it would hold water, since the All Lives Matter message is not tied to a specific race in the way the Black Lives Matter movement is.

“The basis of the alleged discrimination isn’t based on a race, it is based on a message,” said Joe Yastrow, an attorney with Chicago-based Laner Muchin who represents management.

Yastrow said his advice to clients would be to not stand in the way of employees who wish to wear Black Lives Matter paraphernalia at work.

“Under the circumstances and given the volatility of the issue and the gravitas of the issue at this point in time, I don’t think I would encourage an employer to take that issue on,” Yastrow said.

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