With some exceptions, employers have the ability to dictate what an employee can and cannot wear at work, even if prohibiting certain attire may limit an employee's personal expression, so long as its policies are uniformly enforced and not discriminatory. The nature of attire at work can be particularly important in customer-facing positions because such employees are the face of the company and can impact whether customers feel comfortable doing business with a company. A recent court decision supported employers in determining what is and isn't acceptable attire at the workplace.
During the height of the COVID-19 pandemic, employers across the nation were required to enforce national and local facemask policies to remain open for business. Facemasks were available in every color and pattern, with some promoting funny sayings and others bearing religious or political messages. Facemasks instantly became part of an employee's work attire subject to the employer's dress code policies.
In the summer of 2020, facemasks bearing the Black Lives Matter insignia became more common and several employees at Whole Foods Market, Inc., chose to wear such facemasks to work. The company's dress code policy specifically prohibited employees from wearing clothing with "any visible slogan, message, logo, or advertising, unless it was branded with the company's logo or that of a company affiliate." The policy provided that an employee who showed up for work in attire that violated the company's dress code policy would not be allowed to work their shift, resulting in the employee receiving an attendance point under the company's attendance policy. Pursuant to the company's dress code policy, Whole Foods sent home employees who refused to replace Black Lives Matter facemasks with a dress code compliant facemask. As the employee acquired "attendance points," the employee would receive progressive discipline. If an employee accumulated the pre-determined amount of attendance points under the company's attendance policy, Whole Foods terminated their employment.
Employees who lost their employment as a result of the dress code and attendance policies sued Whole Foods, claiming that the company discriminated against them based on race and in retaliation for opposing the company's alleged discriminatory discipline of employees who wore Black Lives Matter facemasks during their work shifts. The employees' racial discrimination claims were dismissed by the court when it concluded that the company had successfully demonstrated an "obvious alternative explanation for Whole Food's enforcement of the dress code against wearing of Black Lives Matter masks," specifically that the company "did not want to allow the mass expression of a controversial message by employees in their stores," which the court agreed was a non-race-based reason to disallow the wearing of the Black Live Matter masks. On January 23, 2023, the federal court judge dismissed the remaining retaliation claims.
With respect to the recently dismissed retaliation claims, the company argued that the terminations were not the result of the employees' protest of the company's strict enforcement of the company's policies, but rather, the terminations were the result of the employees' repeated failure to follow the company's dress code policy. In their attempt to demonstrate that the company's proffered reason for their terminations was simply pretextual, the employees argued that the company deviated from its normal enforcement of the dress code policy by treating them more harshly than it did other employees who also violated the dress code policy, but who had not protested the refusal to allow employees to wear Black Lives Matter facemasks during work shifts.
The court was not convinced by the employees' arguments, finding that the employees failed to identify any employee who violated the dress code in a similar manner during the time period at issue and was treated any differently than they were, and that it was logical and reasonable that the company would not want to allow the mass expression of a controversial message by its employees during work shifts at its stores. Additionally, the court found that the employees failed to demonstrate that Whole Foods' desire to retaliate against them was the actual cause of their terminations.
The employees are in the process of appealing the decision, so the outcome may change. While the court's recent decision dismissing the matter supports an employer's right to make and consistently apply dress code rules, other cases have ended differently. The case-specific facts are very important in these cases, as is the law under which the claim is brought. For example, in a recent case brought under the National Labor Relations Act related to clothing with union insignias, the National Labor Relations Board held that the employer could not apply their dress code policy to prohibit employees from wearing the clothing.
This recent decision emphasizes the need for employers to review their current dress code policies to ensure that they contain language that is more likely to be enforceable, if challenged, and that takes into account current trends and laws. If the policy contains provisions or restrictions that are outdated or otherwise no longer enforced by the company, such provisions should be removed and, if applicable, replaced with provisions regarding the company's current expectations regarding appropriate attire for the workplace. A company should be consistent with the enforcement of its dress code policy, making appropriate adjustments to accommodate religious beliefs and disabilities. In addition, all related policies, such as grooming, attendance, and, if applicable, progressive discipline policies should likewise be reviewed to ensure consistency and compliance.
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