Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?
A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.
In a federal court decision, the workers alleged that the employer violated Title VII by (1) discriminating against Black employees and others associating with and advocating for Black employees when selectively enforcing its policy to target and suppress BLM messaging; and (2) retaliating against employees for continuing to wear BLM apparel and protesting the employer’s dress code policy. As for the discrimination claim, the federal district court found that the workers failed to allege that the workers’ race was the reason for disparate treatment since the employer applied its dress code policy to discipline both Black and non-Black employees for wearing BLM attire. The court also rejected the workers’ alternative theory of associational discrimination because Title VII cannot be read expansively enough to protect one’s right to associate with a given social cause, even a race-related one, in the workplace. Concerning the retaliation claim, the court dismissed all but one of the workers’ retaliation claims, finding again no allegation that the workers were disciplined or treated differently due to their race.
Following this decision, the workers appealed to a federal appellate court. The appellate court affirmed the district court’s dismissal of the workers’ claims, using somewhat different legal grounds. In rejecting the discrimination claim, the appellate court found significant what the workers did not allege. That is, according to the court, they did not allege that the employer applied the policy selectively. They also did not allege that the employer disciplined only wearing BLM attire and not discipline other violations. In effect, the appellate court reasoned that the employer had “nonrace-based” reasons, or an “obvious alternative explanation,” for prohibiting BLM attire — namely, to prevent the mass display of a controversial message by employees in its stores. The appellate court also affirmed the dismissal of the retaliation claims, concluding that the workers failed to allege plausibly that the employer began enforcing its dress code policy as a result of their wearing BLM attire to protect such enforcement.
The Next Chapter
The battle over this legal issue continues. As noted above, the district court allowed one worker’s retaliation claim to proceed based on a different set of facts. Two other workers alleged the same claim through an amended complaint, contending that the employer deviated from its “normal termination procedures” and wrongfully terminated their employment for wearing BLM attire. Relying on the appellate court’s reasoning, the district court found that the employer had “legitimate business explanations” for strictly enforcing its dress code policy. Specifically, the district court observed that during the novelty of the pandemic and in the era of mask wearing, the employer was faced with a business decision of how to address dress code violations tied to what it perceived to be a political movement or controversial message. Although the court acknowledged that such business decision may arguably have been “unwise” or “ill-advised,” that still did not make such decision any less legitimate. Therefore, the court dismissed the retaliation claims.
Almost a week after the court’s decision, the workers filed yet another notice of appeal before the same appellate court, contesting the dismissal of their retaliation claims. It remains to be seen what the appellate court will decide.
Both the district court’s and appellate court’s decisions confirm the importance of the takeaways described in our prior blog post. Employers should continue to apply its workplace policies consistently and uniformly to all employees — particularly with respect to union members — ensuring that the employees engaging in self-expression are not disciplined for protesting workplace discrimination. Employers also should ensure that it does not “favor” or enforce more strictly one policy over another. While employers may have a legitimate nondiscriminatory business reason for doing so, such as to prevent the mass display of a controversial message by employees in its stores, the more prudent approach would be to enforce each policy with equal weight to prevent any potential argument of targeting certain individuals based on a protected characteristic through the inconsistent enforcement of workplace policies.
As always, the Troutman Pepper Labor + Employment team is ready to assist you with the advice necessary to navigate through this challenging topic.