Black Lives Matter apparel at work evokes legal, business, social concerns

The Black Lives Matter (BLM) movement has sparked significant emotion in the past few months. Ever since the NBA season restarted, TV viewers are seeing the phrase emblazoned on the courts and on some players’ jerseys. What you won’t see on TV are the large employers that have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel. For example, several Whole Foods employees recently initiated a class action lawsuit claiming they’ve been subjected to race discrimination and retaliation for wearing BLM masks and other clothing, even after the company reversed its initial prohibition on the face coverings. Let’s look at the legal, business, and social considerations in play here.

Constitutional and legal tug-of-war

Some employees assert their right to free speech should allow them to wear whatever they please to work, not realizing the First Amendment protects them only from unreasonable restrictions on speech by the government. Legally, private employers may restrict speech as long as their actions don’t violate other laws. For example, if employees are engaged in concerted activity about the terms and conditions of their employment, the National Labor Relations Act (NLRA) may protect their conduct and speech.