Court Rules Whole Foods Can Restrict Employee Workplace Expression

It’s Reasonable for Businesses to Prohibit Displays of Controversial Messaging at Work

7/7/22 – – In January, I reported on a legal challenge brought against Whole Foods by the National Labor Relations Board. The NLRB, in support of a Whole Foods employee who was prohibited from wearing a “Black Lives Matter” face mask at work, was charging racial discrimination and arguing that the grocery chain had violated the employee’s free-speech right to advocate for social change.

Last week, in a 3-0 decision, the U.S. Court of Appeals for the First Circuit ruled in Whole Foods’ favor, finding that it’s reasonable for a business to “not want to allow the mass expression of a controversial message by employees in their stores.” The decision, rejecting the discrimination and free-speech claims, is good news for companies struggling with what I call “workplace-expression challenges.”

As American workers return to the office, a toxic political environment and escalating employee activism could poison the work environment. Well-intentioned or not, political expression in the workplace can be an unwelcome distraction, often metastasizing into bullying and intimidation. For retailers like Whole Foods, displays of employee politics can offend and chase away customers.

A Whole Foods spokesperson explained that its dress-code policy — which prohibits visible logos, slogans, messages or flags of any kind — is designed “to ensure we are giving Team Members a workplace and customers a shopping experience focused entirely on excellent service and high-quality food . . . We do not believe we should compromise that experience by introducing any messages on uniforms, regardless of the content, that shift the focus away from our mission.”

There’s been plenty of blow-back against companies adopting “leave your politics at the office door” policies. In 2021, project-management software company Basecamp made news when after prohibiting its employees from participating in “societal and political discourse” at work about one-third of the company’s 60 employees quit. A year earlier, cryptocurrency company Coinbase implemented a similar policy and about five-percent of its workforce resigned.

Here’s how Basecamp CEO Jason Fried defended his company’s position:

“Today’s social and political waters are especially choppy. Sensitivities are at 11, and every discussion remotely related to politics, advocacy, or society at large quickly spins away from pleasant. You shouldn’t have to wonder if staying out of it means you’re complicit, or wading into it means you’re a target. These are difficult enough waters to navigate in life, but significantly more so at work. It’s become too much. It’s a major distraction. It saps our energy and redirects our dialog towards dark places.”

The Whole Foods court ruling may help strengthen the resolve of other companies sharing Fried’s concerns.

Last month’s Supreme Court decision on abortion is likely to heighten employees’ desire to bring politics into the workplace. In addition to focusing on policies, not politics, CEOs can direct this passion away from the office and take pressure off themselves by giving people at all levels of their companies (regardless of where they stand on this or any other issue) time off from work to participate as private citizens in the political process as they see fit. Encouraging them to have their voices heard in their communities is good for everybody. It’s especially good for democracy.

And when employees are participating in political activity on their own time, they can wear whatever they want and display whatever logo, slogan or flag they desire. As the Appeals Court justices suggest, just bring a change of clothes when your headed for work.

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