Thursday, August 20, 2020

BLM vs. MAGA at work

Depending on your political perspective, Goodyear is either being praised or criticized after this slide from diversity training at its Topeka, Kansas, plant went viral.

BLM or LGBT messages on clothing okay; MAGA, Blue Lives Matter, All Lives Matter, or other political symbols not okay.

The image has kicked off a political fire storm, with President Trump calling for a boycott of Goodyear. 

For its part, Goodyear is distancing itself from the slide, stating that it was local to the one plant in Topeka, and was not officially sanctioned by the company.

Inadvertently or not, Goodyear is the latest company to join the fray over the issue of Black Lives Matter messages at work. Whole Food and Amazon are currently defending a multi-state class action lawsuit against a policy banning Black Lives Matters messages on face masks and other apparel. 

Can an employer prohibit BLM messages at work? Maybe. 

Can an employer permit some messages while banning others? Probably not.

The answers depend on two statutes, the National Labor Relations Act and Title VII.

The former permits employees to engage in protected concerted activity, which includes the right to wear insignia at work unless "special circumstances" exist to prohibit them. The "special circumstances" test balances employees' expression of Section 7 rights against an employer's legitimate business interest to enforce the prohibition. According to one federal appellate decision, these legitimate business interests are limited to when the display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established.

An employer looking to prohibit BLM messages at work would rely upon their possibility of exacerbating employee dissension. But that prohibition brings me to the second statute at-issue, Title VII. I think an employer risks a race discrimination claim if it prohibits BLM messages, particularly if it only prohibits BLM messages. If it prohibits all messages (including White Lives Matter, All Lives Matter, and MAGA, for example), Title VII should not come into play.

So, here's where I come down. If you are going to permit or prohibit some political messages to be displayed at work, you better do the same for all. Otherwise, you risk a discrimination lawsuit. But, if you ban all, you risk an NLRA violation absent "special circumstances." I do believe, however, that given our current national climate, an employer has a great chance to meet the "employee dissension" special circumstance.

My opinion? Politics don't belong in the workplace. Given how fragmented our society is right now, you will have a more harmonious workplace if you prohibit all political messages, even ones that support equality. Businesses can do other things to show their support for Black and LGBTQ civil rights without inviting division, descension, and conflict into the workplace. Sometimes, the most inclusive thing to do is to not invite discussions of our differences at work. But (and it's a big but), if you are going to ban BLM messages at work, you need to prepared for the backlash Goodyear is currently facing and be able to explain how you are inclusive and support Black lives even though you don't want political debates at work.

This is tricky issue with no easy answers, and employers are caught smack dab in the middle.