Ask The Lawyer By: Daniel A. Gwinn, Esq – BLM


QUESTION:  Wearing a mask is mandatory where I work, in a large retail establishment. While most people just wear plain medical-looking masks, others personalize their masks, with patterns or colors etc. I decided to wear a black mask with the letters BLM (for Black Lives Matter) in yellow. My supervisor told me I could either take off the mask and wear a plain one (which he gave me) or I could consider myself fired. He said clothing that indicates a political or religious position is prohibited at work. Doesn’t this policy violate my rights?

ANSWER:     To be blunt – no. With very few exceptions, there are no free speech rights in the private workplace. Private employers can forbid clothing or accessories that make political or other statements of which they disapprove; they can fire you for body art they don’t like; and for online activity that they view as critical or as inconsistent with their image. You have a right to make a statement outside of work, but not on the job.

The First Amendment protects our right to free speech, which includes not only what we say, but also symbolic speech – an expression of an idea or belief without words. But that right is limited to protection from government interference. It does not extend to the private workplace. Even the rights we have under the First Amendment are not without restrictions: Speech that incites “imminent” unlawful action can be prosecuted, as can obscenity, child pornography, defamation, libel and some threats. Speech can also be regulated by time, place, and manner. You can stand in the middle of a public park at lunchtime and loudly denounce racism, but you can’t do the same thing at midnight in a residential neighborhood. And you can wear a BLM mask while out and about, but be banned by your employer from wearing it to work.

A private employer has broad discretion to pick and choose the kind of speech, or equivalent conduct (such as symbolic speech, like signs) that it will permit. There are some limits on this power: A private employer’s policy cannot result in a disparate impact on a protected class (race, sex, color, country of origin, age, religion, etc.) or violate a bona fide religious requirement. It also cannot forbid speech that relates concerted activity under the National Labor Relations Act, whether or not the employer is a union shop.

Your employer has every right to ask that all employees wear clothes and accessories that are free from political significance. And, in an age where simply wearing a mask has turned into a political statement of sorts, a boring old light blue may be your safest bet.

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By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]