Social justice movements and employee masks – there’s no easy answer here!

As companies across the U.S. declare support for the Black Lives Matter movement, some are not allowing employees to wear masks or other attire that express solidarity with the cause. Near the GroupOne Background Screening offices in Fort Worth, an employee at a Whataburger restaurant was asked to remove her mask displaying the Black Lives Matter logo as it offended a customer, prompting several days of protests.

It’s an exhausting, ongoing issue as protests have also taken place at Whole Foods, Trader Joe’s, Taco Bell and Starbucks. In almost every case, employers have defended the restrictions as a matter of dress code though, we will be the first to admit, dress codes have never before involved masks.

Tensions could potentially increase as more workplaces reopen and the mask-wearing collides with a national movement decrying racial injustice. It is an extraordinarily complex challenge as employers, reluctant to alienate customers and employees alike, may attempt to ban personal statements across the board.

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 racial discrimination at the office, which could be considered protected under the National Labor Relations Act. Employers could also face allegations of discrimination if the dress code is not consistently enforced.

For example, there could be 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 enforced.

Some companies have responded to public pressure and are letting employees display their solidarity. Starbucks reversed its stance by producing 250,000 t-shirts for employees to wear with a graphic supporting the movement. Company-issued merchandise gives companies some control over the matter.

Other retailers have stood by their policy. For Whole Foods, employees must comply with its dress code prohibiting clothing with slogans, logos or advertising that are not company-related. It also provides face masks to employees if theirs don’t comply.

Sen. Elizabeth Warren, D-Mass., tweeted in July that she supports the Whole Foods workers’ right to wear their own masks.

And we could go on for another 1,000 words detailing additional controversies.

For a smaller employer, a dress code prohibiting all forms of expression could be a safe bet. But companies in the public eye may not be able to stay neutral if they are accused of failing to support their Black employees.

Given the volatility of the issue, companies should attempt to communicate with their employees and decide what course of action will work best for them. Employers should review their current policies when it comes to workplace attire, to include masks. They should also consider consulting with legal counsel for assistance.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.