A recent lawsuit serves as a reminder of how explosive the subject of social justice in the workplace can be.
The National Labor Relations Board (NLRB) recently filed a complaint against Home Depot, alleging that America’s largest home improvement retailer discriminated against an employee for “raising issues of racial harassment with coworkers and managers and displaying a Black Lives Matter slogan on his apron — which are all protected actions under the National Labor Relations Act,” according to an NLRB statement.
According to court documents, the aforementioned employee was among a group of Home Depot employees who exchanged emails, engaged in various conversations with co-workers, supervisors and managers about subjects such as ongoing discrimination and harassment, and/or engaging in other Black Lives Matter-related protected concerted activity.
The suit also asserts that, in this case, Home Depot unlawfully enforced an otherwise lawful dress code and apron policy and threatened employees not to engage in activity regarding racial harassment.
According to the complaint, one employee’s activity, including his refusal to remove the BLM slogan from his apron, “ultimately led to his suspension and constructive discharge.”
Home Depot applies its policies at more than 2,200 stores throughout the United States, Mexico and Canada, and the suit seeks to compel the company to advise all of its U.S. employees of their right to broach the subject of racial discrimination without fear of reprisal.
In a statement, Jennifer Hadsall, the NLRB’s director for the Minneapolis region, addressed how the issues of racial harassment affect the workplace.
“The [National Labor Relations Act] protects employees’ rights to raise these issues with the goal of improving their working conditions,” said Hadsall. “It is this important right we seek to protect in this case.”
In an email statement, a Home Depot spokesperson said that the NLRB lawsuit “misrepresents the relevant facts” surrounding what happened with this group of Minneapolis employees.
“The Home Depot does not tolerate workplace harassment of any kind and takes all reports of discrimination or harassment seriously, as we did in this case,” according to the organization. “We disagree with the characterization of this situation and look forward to sharing the facts during the NLRB’s process. Regardless of the outcome, we will continue to be fully committed to diversity and respect for all people.”
The Home Depot is not the first large organization to face such allegations. In 2020, for example, 27 plaintiffs filed a class action lawsuit that accused Whole Foods of selectively enforcing its dress code by disciplining employees who wore apparel such as face coverings that expressed support for Black Lives Matter.
In that case, the plaintiffs alleged that the multinational supermarket chain would send workers home without pay or take other actions to discipline employees who wore BLM masks and related clothing items, despite permitting other employees to wear masks with visible political messages or sports team logos.
Earlier this year, a U.S. District judge dismissed most of the suit’s claims, ruling that Whole Foods and parent company Amazon did not engage in racial discrimination or violate Title VII of the Civil Rights Act of 1964.
“At worst, [the company was] selectively enforcing a dress code to suppress certain speech in the workplace,” wrote U.S. District Judge Allison Burroughs. “However unappealing that might be, it is not conduct made unlawful by Title VII.”
Whether the claims leveled against Home Depot will meet a similar fate remains to be seen. But, generally speaking, private employers have the ability to limit or prohibit social justice speech activity that is unrelated to employment, including uniform and dress code policies, said Deirdre Macbeth, Esq., content director for regulatory at WorldatWork.
“If a private employer has a restriction on speech or expression activities as part of its uniform and dress code, it should ensure that the policy is neutral and consistently enforced with all employees, and that it does not infringe on any rights granted to employees under state law or protected activity under the NLRB that relates to the terms and conditions of employment.”
Mark McGraw is the managing editor of Workspan.