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Howard Levitt: Businesses May Have Dress Codes, But They May Not Apply Them Racially Discriminately

Leaders from all sectors send company-wide emails to their employees and issue public statements expressing outrage at police brutality and acts of anti-black racism. Never before have so many companies taken such a public stance, with some CEOs loudly declaring that the lives of blacks are important in media statements and interviews.

But many black employees find these statements confusing and hypocritical, because these announcements and statements of support are inconsistent with their own experiences in these same companies.

Starbucks Corp. was one of those companies that recently found themselves facing charges of hypocrisy. He had made public statements and social media posts supporting the Black Lives Matter movement, but had sent an internal memo to employees not to wear Black Lives Matter T-shirts or pins during their job. Once the news of these conflicting messages was known, the company faced violent reactions and quickly peddled.

The coffee chain, swiveling on a penny, now produces 250,000 T-shirts with a Black Lives Matter design and allows employees to wear their own clothes or BLM clothing, while waiting for branded shirts.

Some believe that anti-black racism is primarily an American problem and that our country is tolerant and inclusive, but there have been enough cases to suggest otherwise.

Statistics Canada released a report in February showing that black Canadian adults are less likely to be employed than other adults.

He also said that the gap in median annual wages has increased largely because the wages of black workers have not grown as quickly as their colleagues. Studies show that racist prejudice and roadblocks not only exist in law enforcement, but also translate into the workplace. Black Canadian workers face the same discriminatory repression as their American counterparts.

In this environment, it is understandable that some, especially black employees, want to show their support for the Black Lives Matter movement at work.

Employers cannot prevent employees from supporting the movement during their free time. However, many employees want to know if they can wear Black Lives Matter to work. If you are generally allowed to wear regular t-shirts or custom accessories at work, you can also wear Black Lives Matter support materials.

The reverse is not true. Hateful and racist rhetoric is not legally allowed in the workplace. Businesses may have dress codes, but they cannot be discriminatory or racially discriminatory.

For example, it would be contrary to human rights code if a black employee were dismissed for wearing a Black Lives Matter shirt, but a non-black employee kept his job after wearing an “All Lives Matter” shirt or even a T-shirt with another slogan.

In June, a City of Guelph employee posted a rude post on a public Facebook group “heard in Guelph,” complaining and making fun of Guelph residents who attended a local BLM demonstration. The employee was placed on administrative leave pending an investigation for his comments on social networks. As a public servant and representative of the working community, the employee is legally held to a higher standard and to more public scrutiny.

Employee messages cannot go against employer policies, which are intrinsically linked to human rights code and anti-discrimination practices.

As such, employees and employers who make statements against black Canadians or against anti-black racism can be charged with discrimination under the code. If an employee does not feel comfortable or is outright opposed to BLM discussions in the workplace, they should assess what their employer’s internal statements or notes have dealt with, and schedule discussions with their human resources to remedy his discomfort. Behaviors that undermine the employer’s brand are subject to sanctions.

I discussed employee responsibilities and the consequences of employee social media posts in a previous column.

The level of support for the movement across the country would make it difficult for an employer to hamper the support of their employees at Black Lives Matter. Not only have many companies made public or internal statements declaring their support for the movement, but measures taken to suppress or invalidate the ability of black employees to wear work support equipment may well bring complaints against the employer.

In fact, workers at the Ontario Public Service Employees Union (OPSEU) have publicly supported the Black Lives Matter movement and the Ontario government has released a strategic anti-racism plan that has been put into action. Most recently updated in March 2020. Government actions to promote the fight against racist workplace strategies, in conjunction with the growing BLM movement, will force employers to exercise caution when preventing the wearing of certain clothing or accessories at work.

The Black Lives Matter movement is growing and employees will want to continue to show their support for the workplace. Employers may regulate the dress code of employees at work to some extent, such as imposing casual work requirements or preventing employees from wearing graphic t-shirts at work, but they must respect government policies and human rights . Employers must be aware of how they react in these times of racial awareness.

Do you have a question about labor law during COVID-19? Email me at [email protected]

Howard Levitt is a senior partner of Levitt LLP, labor and employment lawyers. He practices labor law in eight provinces. He is the author of six books including The Law of Dismissal in Canada.

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