[co-author: Taylor Washington ]*

Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?

A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.

First Circuit Decision

Employees sued a private supermarket, claiming that the company discriminated against them under Title VII when it disciplined employees, both Black and white, for wearing BLM face masks.

The supermarket’s dress code policy prohibits employees from wearing clothing that advertises noncompany-related messages, slogans, and logos. Before the pandemic, the policy largely was unenforced. That is, many employees had previously worn clothing that bore the logos of sports teams and other political/social messages without being disciplined. After the death of George Floyd in June 2020, some employees wore BLM masks at work as a part of a larger movement to demand better treatment of Black employees.

It was only after employees began wearing face masks with BLM messages that the supermarket began to enforce the dress policy prohibiting noncompany-related messages on clothing, disciplining workers who refused to remove their masks. Those employees sued, claiming the market’s enforcement of its dress code policy violated Title VII’s prohibition against race discrimination and retaliation.

The district court ruled that the employees failed to state a Title VII discrimination claim because the dress code was applied consistently regardless of an employee’s race. Likewise, the court held that the plaintiffs did not state a claim for retaliation because, while they claimed to wear the BLM face masks to support Black employees and racism in general, they could not point to an unlawful employment practice of the supermarket under Title VII.

The First Circuit affirmed the district court opinion on somewhat different grounds. According to the appellate court, the fact that both Black and non-Black employees were disciplined for wearing BLM masks did not undercut the discrimination claim. As the court stated: “If an employer discriminates both against Black employees based on their race and non-Black employees based on their status as non-Black people associating with Black people, that employer doubles rather than eliminates Title VII liability.” The court concluded, however, that the supermarket had an “obvious alternative explanation” for prohibiting the masks other than the plaintiff’s allegation that it was targeting employees because of their race — the supermarket wanted to prohibit the mass display of a controversial message in its stores by its employees. The court also found that the plaintiffs’ retaliation claim failed because there was no causation between the supermarket continuing to enforce its dress code policy and the employees’ wearing of masks to protest that discipline.

Interestingly, the court noted that because the supermarket was a private employer, the employees could not assert a claim based on the First Amendment.

Third Circuit Decision

Analyzing a public employer’s policy on First Amendment grounds, the Third Circuit recently reached a different result. In that case, employees of a public transportation company alleged that their employer violated their First Amendment rights by implementing a dress code that restricted employees from wearing BLM masks. In July 2020, the company expanded its ban on employees wearing political/social protest buttons to include face masks. Notably, the political/social protest button policy had not been enforced previously when employees wore buttons supporting local and national political campaigns. In September 2020, the company revised the dress code policy further to detail what masks were proper to wear at work. The policy prohibited employees from wearing masks with any visible logos (besides the company or union logo), images, texts, etc.

Both the company and the employees’ union moved for a preliminary injunction. The district court granted a preliminary injunction, preventing the company from enforcing its mask ban, and the company appealed. The Third Circuit affirmed the district court opinion, finding that the transportation company was unlikely to succeed on the merits, and the union was likely to succeed on the merits.

First, the court noted that speech by government employees receives less protection than public speech. To be protected, the employees must speak as “citizens” and not as part of their official duties, and they must speak on matters of public concern. The court found that these two threshold requirements had been met here. The court next looked to whether the employer could show that the company’s interest in promoting the efficiency in the public services it performs was outweighed by the employee’s interest as citizens in commenting on matters of public concern. The court found that the company’s argument failed because the masks bore messages relating to matters of public concern on which the employees had a strong interest in commenting, while the company could demonstrate only a minimal risk that the employees’ masks would create a workplace disruption. Of importance to the court was the fact that the company had not enforced its prior ban on buttons, stating social and political causes and the employees’ conduct in wearing such buttons did not disrupt operations.

Key Takeaways

For private employers that wish to limit employee messaging on attire at work, it is important for companies to draft policies that do not differentiate between different types of messaging and to enforce those policies equally regardless of race or any other protected category. Public employers must give consideration to First Amendment free speech concerns and ensure that their dress codes are narrowly tailored to real harm.

* a 2022 summer associate with Troutman Pepper, is a co-author of this blog post. Taylor is not admitted to practice law in any jurisdiction.