Some Thoughts for Employers Continuing to Wrestle with Limits on Political and Social Advocacy at Work

In September, I wrote a blog post discussing whether, in light of the charged events of 2020, employers can lawfully restrict employee political or social advocacy at work. We’re now well into 2021, but the political and social environment has not changed. Last week, the Derek Chauvin murder verdict prompted a new wave of employee advocacy. And as recently reported by the New York Times, some employers have become so concerned by the combative political environment that they are now banning all political speech in the workplace.

All of which again raises the question—can private employers lawfully restrict political and social speech in the workplace? (Public employers’ ability to restrict speech is limited by the First Amendment, a complex topic that I will not address here except to say that the First Amendment’s protections do not extend to employees of non-government employers.) And has anything in the law changed since I last commented on this issue in September, when I made the following points:

1. There is no right [in a non-governmental workplace] to engage in pure political or social expression.
2. However, statements that contain elements of political or social expression can be protected to the extent they also protest conditions in the workplace, not merely society at large.
3. Even potentially protected expression, however, can lose its protection if it unreasonably interferes with the performance of work.
4. Consistency and even-handed enforcement of dress or conduct codes is key.
5. Because an employer may lawfully restrict a certain message does not necessarily mean that it is good business to do so.

In fact, the legal landscape has changed a bit and there is now a bit more clarity than there was in September. At that time, I wrote in part about the legal challenge brought by workers to Whole Foods’ ban on Black Lives Matter masks. At that time, the case was pending and the outcome uncertain. Since then, the court has rejected the workers’ challenge. It found that even assuming that the workers wore the masks generally to advocate for Black employees of Whole Foods (as opposed to advocating for Black persons generally), their claims failed because the mask ban was not selectively applied based on race—it applied to all employees, regardless of race, and thus the complaining employees failed to show that they personally were being targeted based on race.

As the court wrote, Title VII “does not protect one’s right to associate with a given social cause, even a race-related one, in the workplace. However, the court allowed the possibility that the outcome could have been different had the mask-wearing employees been advocating for co-workers who had been subjected to discrimination by Whole Foods.

The Whole Foods employees have appealed the district court’s decision and will have another shot in the court of appeals. And the district court’s decision is not binding outside of Massachusetts. But the decision does seem to lend support to the notion that employees’ advocacy will, at best, be protected only in narrow circumstances in which their grievances are tied specifically to concerns about racial discrimination in the workplace at issue. And even that may not be enough; it may be that most courts would reject the concept of protected advocacy for others, and require that the protesting employee have been personally discriminated or retaliated against in order to state a discrimination claim.

The Bottom Line for Employers

Private employers interested in the question of whether they may lawfully ban certain political or social expression that is related to race or other protected characteristics should stay abreast of developments in the Whole Foods case described above.

In the meantime, such employers should continue to ask themselves these questions:

  • Is the activity entirely related to political or social issues outside of the workplace? Or is there the possibility that the activity relates to the conditions of employment of the employee or others?
  • Does the activity significantly interfere with the employee’s (or other employees’) ability to do the job, interfere with customer relationships, or create unsafe conditions?
  • How has the company previously treated arguably non-work-related advocacy and protest activity?
  • Even if there appears to be a legal basis to prohibit the activity, is that the right business decision?

The answers to these questions will assist employers and their legal counsel in determining the amount of legal risk that may exist when balancing employee activity with the company’s dress or conduct codes.