In the wake of a Minneapolis police officer’s murder of George Floyd and widespread rioting that ensued, teachers at a Twin Cities area school pressed the school’s superintendent to allow them to promote Black Lives Matter in the classroom. Initially, the superintendent denied the request as a violation of school policy against bringing politics into school.  However, after community members showed up at school board meetings to protest the decision the district relented to the creation of an “Inclusive Poster Series” depicting diverse student groups but also BLM.  When other members of the community sought similar approval to promote competing themes of “Blue Lives” and “All Lives” matter, they were denied.

The lawsuit that followed accused the school district of violating free speech protected by the First Amendment to the U.S. Constitution. The case presented the court with the issue of whether the school district’s support of BLM in its classrooms, amounted to “private speech” or “government speech.”  The trial court dismissed the lawsuit, ruling that the district’s actions amounted to government speech that did not implicate the First Amendment.  However, last week the U.S. Court of Appeals in St. Louis reversed the lower court’s decision and allowed the case to proceed.  In doing so the appellate court stated: “…private speech cannot be passed off as government speech simply by affixing a government seal of approval” on a position advocated by private individuals such as teachers and community members. The court went on to hold that the school district’s denial of requests by other community members to display their “Blue” and “All” lives matter themes in the same fashion as the Black Lives Matter posters, amounted to “viewpoint discrimination” prohibited by the U.S. Constitution. Though this decision does not apply to private sector employers, other court and agency decisions have addressed similar issues involving BLM that do apply to private employers.

For instance, in April Wessels Sherman included an article about an NLRB decision that Home Depot committed an unfair labor practice by refusing to allow an employee to return to work unless he removed a BLM insignia from his work apron. The Board’s decision deemed the BLM insignia was more than political expression, but a “logical outgrowth” of protected activities opposing racial discrimination in the workplace.  Given this decision one can conclude that the EEOC would likewise find that promoting BLM could go beyond politics in certain circumstances, to amount to conduct protected by Title VII if it opposed race discrimination in a workplace. Indeed, a Whole Foods employee who wore a BLM face mask at work during the pandemic, promoted the practice to others, and refused to remove it when asked by management, brought claims before both the NLRB and EEOC. While the employee’s discrimination claims were dismissed a retaliation claim was allowed to proceed. Bottom line – whether BLM, Blue Lives/All Lives Matter, or any other imaginable cause employees may take up at work, employers should not automatically assume the conduct is unprotected “insubordination” or politicking at work. Most often it may well be unprotected….but not always in the eyes of courts and agencies.

Questions? Contact attorney Jim Sherman by email or at 952-746-1700.