Eleventh Circuit Hears Oral Argument in Racial Discrimination Case Involving Hyundai Dreadlock Ban
By Susan Baird Motschiedler
In 2017, Dynamic Security (Dynamic) hired Davita Key (Key) to work in the mailroom at the Hyundai plant in Montgomery, Alabama. Dynamic’s grooming policy prohibited employees from wearing their hair in dreadlocks. Key is African American, wears her hair in dreadlocks and alleges she was told she could wear her hair up while on the job. After Key started work, she was informed that there were memos from Hyundai’s management in South Korea that they did not like African Americans wearing their hair in dreadlocks. Key complained to Dynamic that she felt Hyundai discriminated based on race due to the alleged memos. Dynamic subsequently fired Key after two days of work. Key sued in federal court for pregnancy discrimination, racial discrimination and retaliation based on her discrimination complaint. The Court dismissed the pregnancy and racial discrimination claims but allowed the retaliation claim to go to the jury. After a three-day trial, the jury found that Dynamic had retaliated against Key when it terminated her after she filed her discrimination complaint. The jury awarded Key more than $800,000 for net lost wages and benefits; emotional pain and mental anguish; and punitive damages.
The case is on appeal and set to be heard by the Eleventh Circuit Nov. 19, 2025. The issues on appeal include whether a race-neutral grooming policy banning dreadlocks has a disparate impact on Black workers that should be evaluated as potential race bias. The Court’s decision could potentially provide federal legal clarity on grooming policies that, though race-neutral on their face, impact primarily Black hairstyles. In the absence of federal guidance, several states have passed laws protecting Black hairstyles from grooming policies that otherwise ban them.
Eighth Circuit Reverses NLRB and Approves Home Depot Ban on Employee Display of BLM Support in Minnesota Store Located Seven Miles from Where George Floyd was Murdered
By Susan Baird Motschiedler
The Eighth Circuit recently reversed a National Labor Relations Board’s (NLRB’s) decision and approved a Minnesota Home Depot store’s ban on workers’ display of “BLM” on their uniforms. The underlying case involved employee Caro Linda Bo (Bo or “they” – at the time of the events, Bo went by Antonio Morales) at a Home Depot store located in New Brighton, Minnesota, a suburb of Minneapolis, for writing “BLM” on their uniform in black marker. The employee did so months after George Floyd’s murder to be “approachable” and “as a symbol of solidarity” against “prejudice and racism.”
At or around the same time, several incidents of racial discrimination or harassment occurred at this store: A fellow employee frequently engaged in racially discriminatory conduct towards customers and employees of color. After a series of efforts at corrective coaching and counseling, the employee was terminated in February 2021. The store’s Black History Month display in the employee breakroom was also vandalized and partially destroyed. Bo complained that the supervisor’s response to this event was inadequate and requested that the store hold a meeting to discuss the incident and ensure that employees of color felt safe. Shortly after, the display was vandalized again. Bo again called for a storewide meeting and met with store managers to discuss the matter. During the meeting, the managers noticed the “BLM” message on Bo’s apron and told Bo that it violated the dress code policy. Home Depot did not allow Bo to return to work until “BLM” was removed from Bo’s apron. Bo subsequently met with the district manager and district HR manager about racial incidents at the store and the “BLM” message. The managers reiterated that it was against policy. Bo refused to remove “BLM” from their apron, stated they would be willing to be fired over the issue and resigned the next day. Home Depot subsequently directed other employees to remove the “BLM” lettering from their aprons.
Bo filed an unfair labor practice charge with the NLRB. After a four-day evidentiary hearing, the Administrative Law Judge (ALJ) found that Bo and other employees did not engage in concerted activity by placing “BLM” on their apron because it was not coordinated or discussed; and that Bo had placed “BLM” on their apron before any racial issues arose at the store. The NLRB reversed the ALJ finding and concluded that Bo had engaged in protected activity and that they had been “constructively discharged” when continued employment was contingent on removing the lettering. Home Depot appealed to the Eighth Circuit.
The Eighth Circuit sided with Home Depot and focused on the context of the Home Depot store. The store was located six and half miles from where George Floyd was murdered and had closed several times when there was community unrest and rioting in the area. Bo’s coworkers had also responded to Bo’s “BLM” message by countering it with “Thin Blue Line” or “Blue Lives Matter” messages. The Court of Appeals determined that, under these circumstances, the “BLM” logo “reasonable threatened” the security of the workplace. Home Depot, which had also prohibited the “Thin Blue Line” and “Blue Lives Matter” messages, had suggested alternate “racial equity pins” that it would allow to be worn. The Court concluded that the foregoing concerns were “legitimate safety concerns,” that, combined with the store’s efforts at rooting out racism and encouraging Bo to address working conditions in the ways he suggested, justified Home Depot’s curtailing of the “BLM” message.
Although not an endorsement of a blanket policy banning specific messages, the Eight Circuit’s decision does provide employers with guidance on limiting such messages in situations where there are demonstrated safety concerns.
Question Corner: Whether a Reasonable Accommodation Causes an Undue Hardship for Employers Under the ADA
By Mitchell Lange
Q. We have an employee who suffers from migraines and has been taking a lot of time off, especially on Mondays, our busiest day, creating a significant strain on her team and declining morale. Could this be considered an undue hardship under the Americans with Disabilities Act?
A. Accommodating an employee with migraines under these circumstances may be considered an undue hardship if certain factors are met. Under the Americans with Disabilities Act (ADA), an employer discriminates against an employee with a qualifying disability—which can include physical conditions like migraines—by failing to implement reasonable accommodations unless the employer can show that it would impose an undue hardship on their business.
Primarily, a reasonable accommodation should enable an employee to perform the essential functions of their job by accommodating their physical or mental limitations. At the same time, the accommodation must be feasible for the employer to implement; an employer is not required to agree to the specific accommodations requested by the employee. Thus, employers are required to go through an interactive process with employees to identify a reasonable accommodation, which in this case may look like a modified work environment or work schedule. In most circumstances, however, the parties should be able to identify an accommodation.
In some cases, the only feasible accommodation may still cause an undue hardship for the employer’s business. “Undue hardship” generally refers to accommodations that would result in significant difficulty or expense for the employer. In making this determination, courts weigh several factors including, but not limited to: (1) the nature and cost of the accommodation; (2) the overall financial and labor resources of the covered entity or facilities involved in the accommodation; (3) the type of operation(s) and size of the business of the covered entity; and (4) the overall impact or administrative burden and complexity of implementing the accommodation.
In this case, if missing work – especially on Mondays – undermines the employee’s ability to perform the essential functions of her job, then it may not be a reasonable accommodation for the employee to miss work under these circumstances. Weighing the undue hardship factors, however, is necessarily a fact-intensive exercise. Whether the employee’s accommodation for migraines causes an undue hardship is highly dependent on the employer’s unique circumstances. Notably, the Equal Employment Opportunity Commission (EEOC) has stated that an employer cannot establish an undue hardship solely on the basis of the accommodation negatively impacting the morale of their employees. Facts beyond stressed co-employees and declining morale will need to be considered.
Given the factors required to show an undue hardship, employers should seek assistance from counsel to determine whether a requested accommodation is reasonable and, if so, whether implementing that accommodation could be considered an undue hardship under the ADA.
