Cases continue to arise dealing with the wearing of social/political/patriotic shirts and decals at work. In a January ruling, Whole Foods won summary judgment supporting the enforcement of its neutral dress code against visible slogans, messages, logos or advertising when complainants were suspended for wearing Black Lives Matter masks to work. Frith v. Whole Foods Market, Inc. (D.Mass. 1/23/23). The legitimate business explanation of enforcing a neutral dress code was found to be a legitimate and non-discriminatory ground for enforcing the prohibition of the wearing of Black Lives Matter masks. Similar cases are pending before the National Labor Relations Board, and the NLRB General Counsel is arguing that even neutral and consistently enforced dress codes may not be enough to prohibit the alleged protected concerted activity of wearing Black Lives Matter and other similar slogans. Binding final rulings have not yet been issued from the NLRB itself on these controversial issues.
Articles in this newsletter have repeatedly raised the issue and concerns about counter-protests arising in the workplace. In a recent case, an employee sent an email saying that certain opinions in support of the Black Lives Matter movement were inappropriate, and making statements including "It should be all lives matter." Do we now support "Killing Cops" and similar statements. The employee argued his "All Lives Matter" statement was protected activity in the same way opposition to a hostile work environment is protected activity. A federal court in Michigan ruled against him, stating that Title VII's protection of employees who complain about harassment doesn't "make protected activity out of every reply-all to a politically charged email." Golash v. Trinity Health Corp., No. 21-cv-12333 (E.D. Mich. 2/15/23).
In another case, a white heterosexual employee claimed that displaying the Pride Flag and providing Black Lives Matter buttons to workers while requiring him to remove "patriotic decals" from his work space was job bias. Leffler v. Ann & Robert H. Lurie Children's Hosp. of Chi., 2023 B.L. 71811 (N.D. Ill. 3/6/23). The plaintiff was directed to remove a Betsy Ross flag decal from his work cubicle after an anonymous complaint reported it was offensive and associated with slavery. He was directed to remove other decals because they were believed to be associated with militia groups and white supremacy, and then directed him to remove more general patriotic images that he put up that included the slogan "Don't Tread on Me" and a patch referring to the Second Amendment. He was thereafter fired, even though the hospital displayed a rainbow LGBT Pride flag and had a basket of BLM buttons that employees could take and wear.
The employer's actions concerning the decals were determined by the federal district court judge not to be adverse employment actions, in that the plaintiff's job conditions were not materially altered. The court also ruled that the plaintiff failed to link any adverse action to intentional bias. Some of the decals displayed by the plaintiff were political ideology and not related to a person's racial identity. The court stated that a reasonable person would not necessarily perceive the availability of BLM buttons and display of the Pride Flag as favoring one race or sexual orientation and thus did not constitute harassment.
Editor's Note - Both cases indicate sensitive issues associated with displaying paraphernalia in the workplace that might be associated with one's sexual or racial identity. The advice of counsel is critically necessary in addressing these issues.
This article is part of our June 2023 Newsletter.
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