Masks in the workplace are now commonplace and, in many jurisdictions, required by law. But, should employers monitor the masks being worn by their employees if they are being used to espouse their beliefs for or against political or social causes?
If employees show up with masks that contain language or symbols such as “MAGA,” “BLM” or “Back to Blue,” etc., how should employers handle these statements?
As a threshold matter, employers are obligated to create and maintain safe work environments, free from unlawful discrimination, for ALL of their employees, regardless of gender, age, race, religious background, etc.. Direct or even indirect messages on any attire, including masks, that are harassing, threatening or discriminatory and based on statutorily-protected characteristics cannot and should not be permitted in the workplace. However, political affiliation and affiliation with social causes generally are not protected by law. So, whether or not an employer wishes to prohibit employees from wearing apparel — masks included — that make political or social statements is generally up to the employer’s discretion.
THE “ALL OR NONE” APPROACH
Employers must take care to ensure that all employees are treated fairly and in a non-discriminatory manner. Employees should feel safe and comfortable in the workplace. In an effort to reach the necessary levels of fairness, security and comfort, employers should ensure that employees do not use work time or work premises to demonstrate political and social viewpoints, even though their masks or other attire, given the wide range of views, opinions, beliefs or practices related to sensitive and controversial topics that employees may possess. After all, employees should focus on their work and work-related discussions while they are in the workplace. The best way to achieve these goals is by prohibiting employees from using their apparel, including their masks, to espouse ANY political statements, social messages or other beliefs and opinions. Indeed only an “all or none” approach will ensure that all employees are treated impartially and in a non-discriminatory manner.
Admittedly, even if employees cannot use their clothing to express their views, they are likely going to want to talk about non-work related items in the workplace, which may include the news of the day, politics, and other issues that may be controversial or sensitive. It’s human nature, and in fact, many employers do want to encourage a culture of comradery, where employees enjoy their time at work by engaging in collegial banter with their co-workers. That said, if employees come to work and behave unprofessionally or argue with each other, including about non-work matters, then the employer can and should still proceed with enforcing its normal disciplinary policies. Employers can and should take care to ensure that employees behave in a professional manner during work hours and are productive, as they can be subject to a disciplinary consequence if they fail to do so. Employers should also consider various training, particularly around workplace safety, sexual harassment and prevention, and workplace sensitivity, to help educate their staff on how to best treat and interact with their fellow co-workers.
THE INFAMOUS DRESS CODE
Many employers likely haven’t thought of a dress code, in the traditional sense, in quite some time; especially with the influx of remote work over the past few months (although that did bring its own set of attire challenges). As face masks are now part of our way of life, keep in mind that they would fall under a dress code policy, so employers may want to consider revising their dress code policies to reference face masks and other articles of clothing that may include direct or indirect messaging, specifically. Employers should work with an employment law attorney to help review or even draft a policy on this topic to endure it’s compliant with applicable laws.
Keep in mind:
Remember, all employers have an obligation to ensure that the workplace is a comfortable place for all employees, one that is free from discrimination and harassment based on protected class status, which includes race, color, religion, gender, national origin, and disability, just to name a few. Ultimately, creating or updating a “neutral” and “all or nothing” dress code policy that is fair and consistently applied to all employees, may be a part of creating a comfortable and safe workplace.