You’ve got an employee who is an outspoken critic of your company’s equal employment policies or practices. He or she has violated your dress code by wearing anti-discrimination messages, fomented discontent amongst your employees, attracted negative media attention and even upset some of your customers.

Borrowing a line from the movie Speed, “pop quiz Hotshot,” what are you going to do?

The easy answer is to fight the knee jerk reaction of biting back. Answering the question of what to do after that is a bit more complicated.

Title VII provides broad protections for opposing workplace discrimination.

Late last month, in Kinzer et al. v. Whole Foods Market, Inc., the U.S. Court of Appeals for the First Circuit revived the Title VII lawsuit of an employee who refused to stop wearing a Black Lives Matter (BLM) mask in violation of Whole Foods’ dress code and who was eventually terminated for absences mostly caused by that refusal.

The reasons for that revival are unremarkable and rooted in traditional concepts about retaliation. They have little to do with the legality of Whole Foods’ decision to uniformly enforce a dress code that prohibited employees from wearing clothing with non-company related slogans, messages, or logos.

What may be an eye-opener is the following list of conduct that the First Circuit, and other courts, have found to be protected by Title VII:

  • Picketing with signs protesting alleged discrimination in the workplace.

  • Complaining to customers and suppliers about alleged workplace discrimination.

  • Reporting alleged workplace discrimination to the media.

  • Posting about alleged discrimination or harassment on social media.

Even if the employer knows the picket signs, complaints, and reports are false, that does not determine whether the protest activities are protected. That protection turns on whether the protesting employee reasonably believes the complaint to be true.

While not impossible, negating the existence of that reasonable belief is no easy task.

As a result, taking an adverse employment action against an employee who engages in this type of protest activity because you believe it to be slanderous, disloyal, or contrary to your policies, could result in a costly legal proceeding that may end with you paying even more money to the employee. This is especially true after the U.S. Supreme Court lowered the bar on what types of employment decisions may constitute “adverse employment actions” in Muldrow v.  City of St. Louis.

Buckle up. The National Labor Relations Act may provide even greater protections to employees who oppose workplace discrimination.  

Two months before the Kinzer decision, the NLRB decided Home Depot USA, Inc., and ordered employee Antonio Morales, Jr. be reinstated with backpay after he had been constructively discharged for refusing to remove a BLM inscription on his company-provided apron.

Morales added the BLM inscription in support of complaints that he, and several of his co-workers, made to store management about another employee regularly engaging in racially discriminatory behavior towards employees and customers.

After several months of what he considered to be unsuccessful efforts to remedy the co-worker’s allegedly discriminatory conduct, Morales was called into a meeting with management and instructed to remove the BLM inscription from his apron because it violated Home Depot’s dress code. Rather than do so, he resigned.

Like the court in Kinzer, the NLRB began its decision by describing the types of protest activities protected by the NLRA. It includes employees acting for their mutual aid and protection by complaining about racially discriminatory conduct that impacts their working conditions.  

The eye-popper is the burden the NLRB places on employers who discipline employees because their protest activities violate uniformly enforced work rules, including dress codes.

According to the Board, if an employer interferes with its employees’ right to engage in protests related to their wages, hours, or working conditions, it must prove that the protest activities will:

  • Jeopardize employee safety;

  • Damage machinery or products;

  • Exacerbate employee dissension; or

  • Unreasonably interfere with a public image that the employer has established as part of its business plan, through appearance rules for its employees.

Now that I may have given you some reasons for hope, let me crush them in turn.

Rarely will an employer be able to present evidence of an “imminent risk” of harm to employees, machinery, or products because an employee wears a BLM insignia, union button, or other article of apparel with a message protesting working conditions.

In addition, establishing the defense of employee dissension requires more than showing that other employees disagree with the message. Even threats of violence by objecting employees may be insufficient and, according to the NLRB, should be dealt with by disciplining the employees making such threats.

Finally, the one you probably have been waiting for – interference with public image. According to the NLRB, “the scope of the public image exception is exceedingly narrow.” It is so narrow that none of the following considerations, standing alone, justify restricting employees from wearing items protected by the Act:

  • A policy requiring all employees to wear uniforms or adhere to a dress code.

  • An employer’s status as a retailer or service provider.

  • The fact that employees interact with the public or that customers may be exposed to employees wearing protected insignia.

  • The fact that an employer’s customers might be offended by the items content or message.

Simply put, the fact that an employer is a retailer or service provider, with customer-facing employees who are required to project a certain carefully honed image, which includes wearing a specific uniform, may not be sufficient to justify prohibiting them from wearing any type of union buttons, BLM insignia, or other messages protesting their wages, hours, and working conditions.

Sheesh. Is there any form of protest that falls outside the protections of Title VII and/or the NLRA?

Despite the broad sweep of conduct protected by Title VII and the NLRA, not every form of employee protest is protected. As the U.S. Supreme Court stated more than 50 years ago, “there is no more elemental cause for discharge of an employee than disloyalty to his [or her] employer.”

Hallelujah! But what types of conduct cross the line that separates legal opposition to perceived discrimination in the workplace and unprotected, disloyal, improper conduct?

The best I can do is give a general description based on the prior cases. It can include:

  • Protests for purely individualized gain or motives.

  • Hostile and disruptive forms of protest, that go beyond what the NLRB refers to as “animal exuberance.” (I kid you not. That’s what they call it, and it can protect conduct that you might find offensive).

  • Profane forms of protest not justified by one’s “animal exuberance” in the moment.

  • Attacks on the employer’s business practices unrelated to the alleged discrimination.

  • Disparagement of the employer’s products.

So, Hotshot. What are you going to do?

To start with, if you have a dress code, uniformly enforce it. The evidence in Home Depot showed that the store regularly allowed employees to wear various messages on their aprons. That fact hit well below the water line on Home Depot’s effort to establish a public image defense.

If you have not been uniformly enforcing your dress code, consider taking the steps needed to do so, including putting employees on notice of your intention. In essence, that is what Whole Foods did in the summer of 2020, and it uniformly enforced the policy after that date.

Don’t overreact to protest activities. The unremarkable revival of Kinzer’s retaliation lawsuit can be summarized as follows:  Kinzer was terminated for attendance policy violations created by her being sent home when she refused to remove her BLM insignia. But the final violation was for her being absent when her bicycle tire was stolen and, contrary to the terms of the attendance policy and past practices related to excused absences, that absence was not excused.

Get help. This article generally summarizes more than 60 pages of legal opinions and multiple cases described in those opinions. Determining whether protest activities are protected requires an intensive assessment of the facts and applicable law.

Considering the Hobson’s choice of suffering through protest activities that might be injurious to your business versus costly litigation associated with taking an adverse action against the employees responsible, not getting the proper help would truly be penny-wise and pound-foolish.

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