With tensions rising in partisan politics and COVID-era public health, employers often face a quandary: in considering a workplace dress code, how do we balance respect for our employees’ self-expression against the risk that an employee’s chosen apparel may upset another employee or a customer? A decision, recently issued by the Massachusetts federal district court, reminds employers that one way to successfully strike that balance may be to simply bar outside slogans and logos altogether.
Whole Foods has long maintained a dress code that prohibits clothing with “any visible slogan, message, logo, or advertising” (except, of course, Whole Foods’ own logo). In April 2020, as part of its COVID response, Whole Foods began requiring employees to wear face coverings. In the summer that followed, as Black Lives Matter protests swelled, Whole Foods grew stricter in its dress-code enforcement, including by disciplining some employees who wore facemasks that had the words “Black Lives Matter” printed on them.
Those employees sued, arguing that Whole Foods’ discipline amounted to racial discrimination. After allowing time for the two sides to develop their factual positions, the Massachusetts court granted Whole Foods’ motion for summary judgment, centering its ruling on a key finding: Whole Foods hadn’t singled out employees who wore Black Lives Matter masks—the stricter dress-code enforcement applied company-wide, to all types of messaging. As the court noted, even if Whole Foods “did not strenuously enforce [its] dress code policy until mid-2020, . . . when it increased enforcement, it did so uniformly.”
That’s sound advice for employers seeking to navigate a sensitive political and cultural climate where a crisis can spring from a t-shirt slogan: set a clear dress code, apply it consistently and ensure that disciplinary measures are even-handed and well-documented.
EEOC Update Warns Employers to Pay Careful Attention to Hearing Disabilities
Hearing impairments are among the most common disabilities, with more than one in 10 U.S. adults reporting at least some difficulty hearing, even with hearing aids. Given how common those conditions are, employers are sure to encounter employees in search of workplace accommodations for hearing loss. The Equal Employment Opportunity Commission (EEOC) offered practical guidance to employers on a host of hearing-disability issues in a guidance document that issued just last week.
That document reminds employers, for example, that the Americans with Disabilities Act (ADA) generally prohibits asking job applicants about a disability like a hearing condition during an interview—even if that condition seems obvious. The document also identifies accommodations that may assist employees with hearing impairments, including a variety of assistive technologies. For employers worried that an employee with trouble hearing may pose safety risks, the EEOC stresses that safety concerns affect an ADA analysis only if the individual poses a “direct threat”—that is, “a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.”
The new EEOC guidance closes with a familiar prompt: an invitation to file an employment-discrimination charge, aimed at anyone who believes their ADA rights may have been violated. In light of that open invitation, employers are wise to pay careful attention to this new guidance—and to seek out legal counsel for more nuanced advice in ADA issues.
A New Year Brings a New Wave of Uncertainty for Employers in Utah and Nationwide
If April is the cruelest month, January may be the most uncertain—at least for Utah employers. Utah’s legislative session kicks off in mid-January, and as lawmakers flock to Capitol Hill, employers brace themselves for new risks and new requirements. Take one “zombie bill” from the 2023 session, representing a renewed interest among lawmakers to ban “vaccine passports.” A similar bill died on the senate floor last session without a vote. This year’s version has the same goal: to prohibit private employers form requiring proof of vaccination for both employees and customers.
Another widely-covered bill would rewrite the Utah rulebook courts use when entering preliminary injunctions—court orders that place temporary restrictions on the parties while litigation is ongoing. While the bill appears to target a temporary order related to abortion rights in Utah, its effects could spread to employers involved in pending litigation, including, for example, employers with orders restricting former employees’ use of confidential company information during litigation over trade secrets or noncompete agreements.
Recent action before the United States Supreme Court has caught employers’ eyes as well. In mid-January, the high court first hinted that it was open to expanding the list of liability-triggering “adverse employment actions” to include things like transfers and paid suspensions, then agreed to consider lightening the burden on employees in religious-discrimination cases. Those changes would wipe out years’ of precedent and leave employers scrambling.
None of these eyebrow-raising developments are final: those Utah bills haven’t been signed into law, and those Supreme Court cases haven’t yet been argued, much less decided. But employers won’t have to wait long—and the decisions regarding those bills and cases will no doubt feature prominently in Parsons’ Employment Law Updates as winter turns to spring.
From France, a Cautionary Tale About Managing Your Least-Fun Employees
Anyone who dipped into the latest issue of the The New Yorker may have stumbled onto a delightfully dour story about a French employment dispute. A gloomy employee called only “Monsieur T.” claims he was fired for not participating in his consulting firm’s “fun & pro” culture. A French court sided with Monsieur T., invoking the European Convention on Human Rights to hold that the employee “had no obligation to attend retreats and Friday apéros.”
That court decision doesn’t mean much to U.S. employers, of course. But there may be a good practical lesson lurking. As the article puts it, “Work fun is fine, but it is a poor substitute for the attributes that make a workplace truly attractive: job stability, proper benefits, equal pay, prospects for advancement, flexibility, a respectful and well-resourced environment.” That may be a sentiment that may make even gloomy Monsieur T. crack a smile.
