As employees' desire to express themselves and show their support for various causes at work appears to grow, employers are cautioned to ensure their dress codes comply with the law.
For instance, the National Labor Relations Act (NLRA) may restrict employer dress codes in workplace settings that prohibit employees from wearing clothing, buttons, etc., to show support for or opposition to a union. The National Labor Relations Board (NLRB) requires that rules which restrict the right to wear union insignia and clothing be narrowly tailored to the special circumstances justifying maintenance of the rule and requires the employer to bear the burden of proving such special circumstances.
On June 10, 2022, an NLRB administrative law judge (ALJ) dismissed a complaint alleging Home Depot illegally banned employees from wearing the “Black Lives Matter” or “BLM” slogan on their aprons or clothing in violation of Section 8(a)(1) of the NLRA. Home Depot USA, Inc. v. Morales, MSPB Case No. 18-CA-273796, (2022). Home Depot’s dress code prohibited employees from placing political or religious messages unrelated to workplace matters on their aprons. Home Depot gave the employees the ultimatum to remove the Black Lives Matter messaging or quit.
The NLRB General Counsel argued that Home Depot violated the NLRA by classifying the Black Lives Matter messaging as falling under the facially lawful dress code prohibition. The ALJ disagreed with the General Counsel, writing, “A message about unjustified killings of black men, while a matter of profound societal importance, is not directly relevant to the terms, conditions, or lot of Home Depot’s employees as employees.”
Although the ALJ’s decision may be appealed to the NLRB, and then to federal court, the takeaway is for employers is to ensure their dress codes are narrowly tailored and as specific as possible to protect their legitimate business interest (e.g., avoid potential harm to customers/clients or protect the company image). In addition to the NLRA, other antidiscrimination laws may also impact dress and grooming policies in the workplace. Therefore, employers should also ensure their dress codes are neutral, adopted for nondiscriminatory reasons, and consistently applied, to avoid violating anti-discrimination laws.
HEC members may contact their HR Consultant for assistance in reviewing their dress code policies.