Workers are fighting for their right to wear Black Lives Matter gear. Here’s why a lawyer says companies’ decision to enforce bans is dangerous.

• Workers at chains including Whataburger, Ralphs, and Whole Foods are fighting for their right to wear Black Lives Matter masks and other gear on the job. 
• Employers have the right to create dress codes that prevent workers from wearing clothing with any sort of messaging, according to employment and discrimination attorney Wendy Greene. 
• However, if these policies are not regularly enforced, employers could be subject to discrimination claims. 
• “Even though generally, employers are within their legal rights to bar employees from wearing ‘Black Lives Matter’ masks and shirts, employers should shift the focus from whether I can legally do so to should I do so?” Greene said.
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Workers are fighting for their right to wear Black Lives Matter gear on the job. But, can they win in court? 

Last week, Ma’Kiya Congious filed a complaint with Texas officials against Whataburger, saying the burger chain pushed her out after she wore a Black Lives Matter mask to work. Congious’ attorney says she plans to file a racial-discrimination lawsuit against the burger chain. 

Labor union United Food and Commercial Workers Local 21 also filed an unfair labor charge against Kroger-owned supermarket chains QFC and Ralphs in September, saying Seattle-area employees were told to remove Black Lives Matter buttons. 

Meanwhile, back in July, Whole Foods workers filed a class action suit against the grocery chain, saying they were prevented from wearing Black Lives Matter masks on the job. The lawsuit now involves 28 Whole Foods and Amazon employees in nine states, some of whom say they were sent home or threatened with termination for wearing BLM gear. 

The chains and a number of other companies that have banned employees from wearing BLM apparel at work emphasized that they were not specifically barring workers from wearing BLM masks or buttons. Instead, they said that they did not want workers to wear any messages that were unrelated to the brand at work. 

“It’s important for our customers to understand the purpose behind this policy,” Whataburger said in a statement to Business Insider. “If we allow any non-Whataburger slogans as part of our uniforms, we have to allow all slogans. This could create tension and conflict among our employees and our customers. It is our job as a responsible brand to proactively keep our employees and customers safe.” 

Do these policies justify workplaces preventing employees from wearing BLM masks or other gear? The answer, according to employment and discrimination attorney Wendy Greene, is complicated. 

The messy legality of Black Lives Matter mask bans 

Greene, a professor at the Drexel Kline School of Law, told Business Insider in July that private companies are typically given “considerable latitude in regulating an employee’s dress while working.” So, banning any messages on clothing would be allowed in the same way that banning certain colored shirts or jeans at work is considered an employer’s legal right.

However, questions around how policies are enforced can create legal problems for employers. According to Greene, any written or informal uniform policies needs to be enforced “evenly and uniformly to prevent claims of differential treatment on the basis of protected classifications like race.” 

“If an employer disallows Black employees from wearing Black Lives Matter paraphernalia yet permits non-Black employees to wear paraphernalia advancing other social justice causes, the employer can be subject to a race discrimination claim,” Greene said. 

This alleged unequal treatment is the crux of Whole Foods workers’ argument against the grocery chain and parent company Amazon.

Whole Foods workers say Black Lives Matter masks were targeted

According to Whole Foods workers’ complaint, the grocery chain’s policy against “visible slogans, messages, logos, or advertising” was generally unenforced. Employees said people had worn apparel with cartoon characters, sports logos, and Pride flags to support LGBTQ coworkers without facing repercussions. 

“Plaintiffs and other Whole Foods employees expected Whole Foods would support their decision to wear [BLM] masks because Whole Foods has expressed support for inclusivity and equality and because it previously allowed its employees to express support for their LGBTQ+ coworkers through their apparel without discipline,” the complaint states. 

Workers allege they were sent home when they refused to take off their masks, with Savannah Kinzer claiming she was fired from her job at a Cambridge, Massachusetts Whole Foods for organizing workers to wear BLM masks. 

“It is possible it’s uncomfortable for people, but it’s not political,” Kinzer told Business Insider in July. “It’s human rights. It is a simple, simple statement: Black lives matter, that’s it. They matter.”

Whole Foods declined to comment on pending litigation, but denied that any employees were terminated for wearing Black Lives Matter masks or other gear at work. 

“It is critical to clarify that no Team Members have been terminated for wearing Black Lives Matter face masks or apparel,” a Whole Foods spokesperson said in July. “Savannah Kinzer was separated from the company for repeatedly violating our time and attendance policy by not working her assigned shifts, reporting late for work multiple times in the past nine days, and choosing to leave during her scheduled shifts.” 

Should companies let workers wear masks? 

Greene said that there are bigger questions than simply legality that companies need to consider when it comes to barring workers from wearing Black Lives Matter masks. Enforcing these policies could cause employees and the public to believe that their commitments to combat racism are “insincere and performative.” 

“Even though generally, employers are within their legal rights to bar employees from wearing ‘Black Lives Matter’ masks and shirts, employers should shift the focus from whether I can legally do so to should I do so?” Greene said.

“That in mind, employers should assess whether developing grooming policies barring ‘Black Lives Matter’ masks and shirts in the workplace is in furtherance of or in contradiction to their organizational commitment to racial equity and justice,” Greene continued. 

Increasingly, employees are not satisfied with their companies staying on the sidelines when it comes to political and social issues. Jacinta Gauda, the principal at The Gauda Group — a communications firm that works on branding, strategy, and diversity and inclusion — told Business Insider that the US has a “generation of workers who will push traditional boundaries and test the company’s commitments.” 

“Increasingly, workers want to be heard, and wearing a mask, t-shirt, or hat with a powerful message gives workers voice,” said Gauda. “In today’s workplace, it is essential to give all workers a safe, risk-free way to communicate their concerns and experiences around racial issues.”