No Freedom of Speech in The Private Workplace

Contrary to what most employees believe, there is no “freedom of speech” in a private workplace. This principle was confirmed again last week by a federal court in Massachusetts. (https://d279m997dpfwgl.cloudfront.net/wp/2021/02/Whole-foods-decision-Feb-5.pdf).

In July 2020, twenty-seven employees of Whole Foods Market, Inc., from across the country brought a class action lawsuit alleging that Whole Foods illegally barred them from wearing masks that read “Black Lives Matter” during their shifts. The employees alleged that the Whole Foods dress code policy was selectively enforced and that their discipline for violating the policy amounted to racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964.

The Court, however, disagreed with the employees finding that there was insufficient evidence that Whole Foods managers discriminated against employees based on race. According to the court, selectively enforcing a dress code to suppress certain speech in the workplace – however unappealing that may be – is not conduct made unlawful by Title VII. The Court emphasized that “Title VII prohibits discrimination against a person because of race. It does not protect one’s right to associate with a given social cause, even a race-related one, in the workplace.”

This decision comes as many Pennsylvania employees believe that they can assert their free speech rights at their private workplace. In light of the vast number of social issues facing the country today, this is an important reminder to all employees that no such “freedom of speech” exists in a private workplace. Employers, on the other hand, should be careful when terminating employees who engage in protected activity (such as filing an EEOC Charge of Discrimination) in order to avoid potential retaliation liability.

For questions about how this case might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that effect your workplace, be sure to subscribe to our blog and follow us on social media.