Lately, we’ve seen a rise in client inquiries about handling employees who wear message-driven attire at work. While the First Amendment protects free speech, it doesn’t give employees in private workplaces free rein to wear whatever they want. Employers do have some control over workplace dress codes, but there are legal nuances to consider.
What the Law Says
California Labor Code §§ 1101-1102 prevent employers from discriminating against employees based on political affiliations. However, that doesn’t mean businesses have no say in workplace attire. Employers can restrict clothing that incites violence or causes significant workplace disruption—as long as the policy is neutral, both in writing and in practice.
When Can Employers Restrict Issue-Oriented Attire?
Generally, employers can enforce dress codes if message-driven clothing is disrupting the workplace. Courts have upheld employer limitations on employee speech, including political expression, when it is necessary to maintain order and prevent workplace violence. But proving that a restriction is legally sound can be tricky.
The framework for balancing employee rights with employer interests was established in the 1968 United States Supreme Court case Pickering v. Board of Education. The Court emphasized that employers must balance employees’ rights to express themselves on public concerns against the employer’s need to maintain an efficient and safe workplace.
A notable case, Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County, involved an employer banning “Black Lives Matter” masks to prevent workplace disruption. The Court ruled against the employer because they inconsistently enforced the policy—allowing other political pins while banning the masks. This contradiction weakened their argument that the restriction was necessary.
Similarly, in NLRB v. Mead Corp. and McFall v. Bednar, courts upheld that employers must prove actual disruption or a strong likelihood of it before restricting speech. The decision in Nichols v. Dancer reaffirmed that employers need clear evidence of workplace disruption to justify these policies.
What This Means for Employers
If an employer can show that certain issue-related clothing is causing—or is likely to cause—a disruption, they can restrict it. However, courts tend to scrutinize these policies closely, and many employers have failed to meet the legal standard.
One key takeaway comes from Dodge v. Evergreen School District #114, where a teacher wore a MAGA hat to a training session. The school attempted to restrict the hat, arguing it disrupted workplace harmony. However, the Court ruled that the school hadn’t established enough disruption to justify the restriction—especially since the teacher removed the hat after a complaint and the training continued without issues. The Court noted that if the school had a clear, neutral policy banning all “political” expression, the restriction could have been upheld.
Best Practices for Employers
For companies without an existing policy on [political] expression in the workplace, now is the time to create one. A well-crafted policy should:
- Be neutral – It should apply equally to all political viewpoints.
- Be consistently enforced – Inconsistencies weaken an employer’s position in court.
- Focus on workplace efficiency – Employers should be able to demonstrate how certain attire disrupts productivity or workplace harmony.
- Consider a uniform policy – This can eliminate ambiguity and potential conflicts.
The bottom line? Employers have the right to maintain order in the workplace, but they need to be mindful of how they implement and enforce policies. A proactive approach can help prevent legal challenges down the road.
Please contact our Employment Law Group for any questions and guidance.
