Conflict Continues Over Displays of Political and Social Activism in the Workplace
There have been some highly publicized stories lately of employers taking different approaches to managing employee dress codes, specifically dealing with employees wearing Black Lives Matter (“BLM”) apparel and other forms of political and social justice expression. It was reported that one employer expressly communicated to employees that they are permitted to wear BLM apparel, but that they may not wear All Lives Matter or Blue Lives Matter apparel, nor may they wear MAGA apparel. The employer also stated that no political apparel was permitted, but only expressly called out MAGA apparel (not Joe Biden apparel). Heated reactions followed.
Employers considering similar policies should be aware of legal implications. In California, Labor Code sections 1101-1102 prohibit employers from taking action that tends to control or direct the political affiliations of employees. Not everyone agrees whether the BLM movement is political or not, but to the extent that it is, employers may be violating the law if they express support for BLM dress, but not, for example, Blue Lives Matter dress. Whether you label BLM a political organization or a social justice organization, employers should not be telling employees they can support one cause, but not other similar causes. Additionally, with respect to the upcoming election, prohibiting only some forms of political expression (e.g. MAGA) while allowing others certainly poses risk of a lawsuit.
Some employers have policies prohibiting all such forms of “political” expression in the workplace, including BLM, MAGA, and any other politically-charged slogans. Are these policies lawful? Likely so. Employers have a legitimate interest in avoiding disruption and discord in the workplace. A neutral policy prohibiting politically-charged apparel serves that interest. The key here is that the policy must be neutral—both as written and as applied/enforced. (Otherwise, you run the risk of potential claims of discrimination.) Remember, contrary to popular belief, the First Amendment does not give employees a free speech right to wear whatever form of expression they like in a private workplace. The First Amendment does not apply to private employers. It is true that the National Labor Relations Act (“NLRA”) protects employee rights to engage in concerted activity for mutual aid and protection. However, this generally applies to workplace issues (e.g. protesting workplace discrimination), not general societal issues without a nexus to the employee’s workplace. Additionally, the NLRA contains a “special circumstances” exception that can support a prohibition on employee displays of certain insignias that may exacerbate employee discord and/or interfere with the business’ public image.
Of course, many employers have been thrust into the public spotlight over their policies and some have faced immense social pressure to change their policies, even if they are lawful. This is a separate, and perhaps equally important, business consideration, particularly for businesses that serve the public and whose bottom line may be affected by negative press. However, any business should carefully consider the legal risk when weighing the options on managing this issue.