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August 21, 2020

On August 19, President Donald Trump urged Americans nationwide to boycott Akron, Ohio-based Goodyear—tweeting, “Don’t buy GOODYEAR TIRES – They announced a BAN ON MAGA HATS.”

The tire company said there was no specific ban, but it had asked employees to refrain from some workplaces expressions that might inflame political and social discourse at work.  

And Goodyear is not the only American business that is trying to stop divisive debates in the workplace. Even as companies declare support for the Black Lives Matter movement, some are not allowing employees to wear masks or other attire that expresses solidarity with the cause, The Chicago Tribune reports.

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.

Alrady, there have been attire-related incidents: On 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, the Tribune notes.

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

.In the Chicago suburbs, a Costco employee told the Tribune that she 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 a silent protest in the days that followed, the employee, who is Black, said she 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 more than a decade and asked not to be identified for fear of retribution. “We are supposed to shut up and take it.”

Cellphone 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 at work that celebrates LGBTQ pride.

Costco declined a request from The Chicago Tribune to comment or answer a list of written questions.

Last week, the Chicago-area employee said she 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.

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 also could 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 some have not.

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.

However, Whole Foods says that “in order to operate in a customer-focused environment,” employees must comply with its long-standing 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.

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.

It’s a “woke” world we’re living in now: Employers will have to decide whether they will take a stance against those viewpoints, she said.

Research contact: @chicagotribune