Both the National Labor Relations Board (NLRB) and the First U.S. Circuit Court of Appeals weighed in on employees wearing Black Lives Matter items while at work, with the Board siding with the employee and the federal appellate panel issuing a mixed decision.
Antonio Morales Jr., who identifies as Hispanic, Mexican and a person of color (and uses they/them pronouns), was employed as a sales specialist in the flooring department at a New Brighton, Minn., Home Depot. Soldering Pcb
Morales and several other employees often discussed the racially discriminatory behavior of their supervisor and reported her on multiple instances. The employees also expressed disappointment with management after their Black History Month display materials were torn down and thrown in the trash on multiple occasions.
Throughout Morales’s employment, they wore hand-drawn BLM initials on their apron. Although no one had ever said anything previously, during a call with management about racial concerns at the store, Morales was told that the BLM on his apron violated the dress code and that they had to remove it.
Morales refused and resigned instead. They later filed a charge with the NLRB. In a 3-1 decision, the Board found that Morales’s refusal to remove the BLM marking from their work apron was protected concerted activity protected by the National Labor Relations Act (NLRA) as an outgrowth of their concerns about racially discriminatory activity in the workplace.
“The record here plainly shows the existence of a group complaint about working conditions,” the Board wrote. “Specifically, Morales and their coworkers raised objections about [Home Depot’s] racially discriminatory working conditions and the manner in which [Home Depot] addressed those concerns.”
Home Depot first began asking Morales to remove the BLM marking during meetings in which Morales voiced group concerns about Home Depot’s response to discriminatory working conditions and articulated the connection between Morales’ display of BLM and those group concerns.
“In these circumstances, Morales’ insistence on continuing to wear the BLM marking on their apron was, at a minimum, a logical outgrowth of the employees’ prior concerted activities,” the Board concluded.
Home Depot failed to demonstrate special circumstances justifying the prohibition of BLM markings, the NLRB added, as the employer not only permitted but encouraged employees to personalize their aprons by adding written messages, images and other elements, including LGBTQ Pride symbols, holiday symbols and insignia of professional or college sports teams.
The Board found that Morales was constructively discharged and ordered Home Depot to make him whole for any loss of earnings as well as offer full reinstatement to their former job.
In the First Circuit, a trio of Whole Foods Market employees who wore BLM facemasks to work and were terminated for repeated violations of the dress code filed suit under Title VII, alleging retaliation.
The district court granted the employer’s motion for summary judgment against all three employees, but the federal appellate panel reversed as to one of the employees.
Savannah Kinzer worked at a Whole Foods store in Cambridge, Mass. and began wearing a BLM mask to work in late June of 2020, to express support for the Black community and to protest Whole Foods’ discipline of employees who had worn such masks at other stores.
The first time she wore the mask, she was instructed to replace it; when she refused, she was sent home and received a point pursuant to the employer’s point-based system to enforce its time and attendance policy.
Over the next few weeks, she repeatedly wore her mask to work and received additional points. Kinzer also organized her coworkers to join her efforts as well as protests outside the store that attracted community members and public officials and received media attention.
Kinzer’s activity was well known to Whole Foods’ management, with internal emails referring to her as the “main agitator” and “the activist that has been the self-appointed voice of the group.”
One morning, Kinzer called her supervisor to report that she would be late because her bicycle tire had been stolen. The supervisor assured Kinzer her tardiness would be excused because the circumstances were out of her control, but Kinzer was terminated later that day after management decided to give her a final point.
As distinct from the other two plaintiffs, Kinzer was able to point to specific facts that demonstrated Whole Foods’ invocation of her accumulation of attendance points was pretext for retaliation, the court said.
The record supported the proposition that transportation issues beyond an employee’s control were typically granted leniency, the court said, supported by the testimony of Kinzer’s supervisor who said the firing “could be retaliation.”
In addition, management’s behavior toward Kinzer and the timing of her termination, following on the heels of her protected activity, lent support to her retaliation theory, the First Circuit said.
To read the Board’s decision and order in Home Depot USA, click here.
To read the opinion in Kinzer v. Whole Foods Market, click here.
The decisions provide an important lesson for employers about the risks associated with enforcing a dress code. At Home Depot, the employer encouraged its workers to personalize their aprons and when an employee was instructed to remove their BLM letters, in the context of discussions about racial discrimination, the Board found it constituted a violation of the NLRA. Whole Foods was able to successfully point to enforcement of its dress code for two of the three plaintiffs who sued after being terminated for wearing BLM facemasks, but the third was able to survive summary judgment with evidence of pretext where the policy was applied differently to her.
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