Can HR ban politically focused face masks?

As the presidential election looms closer, some attorneys are fielding questions from employers about its impact on the workplace: Can they ban political speech? Should they enforce a dress code that prevents employees from wearing political attire, everything from Black Lives Matter face masks to Make America Great Again hats? The answer to both is a definite maybe.

Related: Why HR needs to watch out for ‘immunity discrimination’

Since there’s no universal policy on such issues, HR needs to take into account how restrictive the company wants to be based on many factors, such as its workplace culture, the type of industry it’s in or the demographics and size of its workforce. Still, there is one practice all HR professionals must observe to steer clear of litigation: Be consistent in how this policy is applied and enforced across the organization.

Tracey Diamond

“Everything goes back to consistency,” says Tracey Diamond, counsel at Troutman Pepper law firm. “Where some companies are getting into legal trouble is they’re changing their dress code in response to someone walking in the door with a BLM mask on. Beforehand, they allowed all types of political expression. Now, all of a sudden, they place restrictions on what employees can wear. It looks like it’s in response to that particular BLM message brought into the workplace.”

Some companies have already experienced employee backlash on that very issue. Employees at Whole Foods recently filed a federal class-action lawsuit against the Amazon-owned supermarket chain for firing one employee and disciplining 40 others for wearing BLM masks. Although the company’s dress code bars slogans or logos that aren’t company-related, workers were allowed to wear clothing with rainbow pins and flags in support of LGBTQ rights.

Consistency also applies to free speech. Diamond says her theory is that employees come to work to accomplish specific tasks. Since discussing politics can be a big distraction and interfere with their ability to perform their job, HR may establish rules on prohibiting the expression of political views during the workday as long as they’re consistently enforced.

See also: How should HR handle political talk in the new workplace?

Just be careful that enforcing these policies doesn’t cross sensitive boundaries. Free speech also applies to employees who believe they’re being treated differently because of their religion or skin color, for instance. They have the right to complain about the terms and conditions of their employment during work hours; otherwise, employers may be violating discrimination laws.

Diamond says this highly charged political, economic and health climate presents opportunities for HR to host a broader conversation about respecting both diversity in the workplace and co-worker viewpoints, no matter where they fall on the political spectrum.

“This is a tense time with all sorts of workplace problems,“ Diamond says. “[HR] really needs to think hard about how it can have employees feel comfortable coming to work and getting their job done in an environment that’s respectful to everybody.”

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