Cavitch Familo & Durkin, Co., L.P.A.
 

Title VII: Black Lives Matter Masks in the Workplace

Does a private sector employer violate Title VII when it forbids employees from wearing face masks that express a position on current events?  Generally, no.  This was recently reaffirmed by a federal court in Massachusetts, where employees sued Whole Foods Market, Inc. over the company’s ban on Black Lives Matter (“BLM”) face masks.  Whole Foods has a policy banning such apparel, and it disciplined a number of employees for wearing the masks.  The employees argued that the policy violated Title VII because Whole Foods permitted apparel bearing other expressions, such as support for LGBTQ+ rights, and the National Rifle Association.  Thus, the employees urged that this policy was illegal, as it selectively prohibited the BLM message.

The court dismissed the case, explaining that the Whole Foods policy was applied to all employees, irrespective of race, and thus did not violate Title VII’s prohibition against discrimination because of a person’s race.  The court also dismissed most of the retaliation claims, because the BLM message was not directed at a Whole Foods policy, but rather against social injustice in the wake of the George Floyd killing.  As such, the policy did not implicate Title VII’s prohibition against retaliation.

Private sector employers may generally prohibit the expression of political views without running afoul of anti-discrimination laws.  But the right is not unlimited.  By example, pro-union expressions may be protected by the National Labor Relations Act.  Before implementing such a policy, employers should reach out to legal counsel to ensure a lawful and safe course of action.

 

Do You Have Questions?

Contact Cavitch employment attorneys Max Dehn, mdehn@cavitch.com, Komlavi Atsou, katsou@cavitch.com, and Madilyn Maruna, mmaruna@cavitch.com