What Whole Foods and Chick-fil-A need to consider when workers wear Black Lives Matter masks, according to an employment and discrimination lawyer

• Major brands like Starbucks, Chick-fil-A, and Whole Foods are trying to determine if employees should be allowed to wear Black Lives Matter masks on the job.
• Wendy Greene, a lawyer focusing on employment and discrimination and a professor at Drexel University Thomas R. Kline School of Law, said that typically bans on Black Lives Matter masks and shirts are legal under existing legislation on dress codes at work.
• However, Greene said that companies may face legal repercussions if non-Black employees are allowed to show support for other social justice causes while Black workers are banned from wearing BLM gear.
• "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.

As the pandemic continues and masks become mandatory for workers, employers are facing a new dress code conundrum — should employees be allowed to wear Black Lives Matter masks on the job? Massive brands including Starbucks, Chick-fil-A, Whole Foods, and Wawa have grappled with this question.

Brands like Whole Foods and Chick-fil-A have said that — in line with preestablished dress codes — workers cannot wear masks with slogans, messages, or logos. Meanwhile, Starbucks and Wawa have backtracked on bans, reversing course to create new Black Lives Matter merchandise for employees.

"Wear your BLM pin or t-shirt. We are so proud of your passionate support of our common humanity," Starbucks said in a memo announcing the new policy. "We trust you to do what's right while never forgetting Starbucks is a welcoming third place where all are treated with dignity and respect."

As different companies try out different approaches, businesses also need to consider the legal repercussions of their policies. Wendy Greene, a lawyer focusing on employment and discrimination and a professor at Drexel University Thomas R. Kline School of Law, told Business Insider that typically private employers would have "considerable latitude in regulating an employee's dress while working."

Greene — who is an expert in discrimination and grooming codes — said that there are some situations in which banning Black Lives Matter merchandise could cause legal problems for employers.

If companies ban Black employees from wearing Black Lives Matter gear but allow non-Black employees to wear paraphernalia advocating for other social justice issues, workers may be able to claim they faced racial discrimination. Chains such as Starbucks that allow pins and t-shirts linked to certain identities — such as rainbow gear to celebrate LGBTQ workers during Pride month — could face legal issues if they ban Black Lives Matter masks.

"If employers have either a written or informal policy against workers wearing non-company slogans, they need to enforce these directives evenly and uniformly to prevent claims of differential treatment on the basis of protected classifications like race," Greene said.

Additionally, if workers are wearing Black Lives Matter masks or shirts to protest racially discriminatory practices specific to their workplace, they may also be protected legally. In these cases, Greene said if a worker is terminated or harassed for wearing BLM gear "the employee may have an actionable retaliation claim under federal employment statutes such as Title VII of the 1964 Civil Rights Act or the National Labor Relations Act, as well as state labor and employment laws."

Greene says that companies need to think beyond legal repercussions to understand how bans on Black Lives Matter gear might impact workers, as well as businesses' reputations. As companies put out statements in support of Black Lives Matter protests, banning workers from speaking out can make employers seem "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.