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In the Wake of Racial Injustice, Employees and Employers Are Checking Each Other

As conversation surrounding racial justice grows nationwide, candid discussions regarding race are coming to a head in the workplace, where employers and employees are pushing one another to be on the right side of the conversation.

While the national conversation is shifting, studies show that more employees are likely to share their social and political views at work. When Starbucks employees were told via internal company memo they could not wear Black Lives Matter pins and t-shirts at work, as it violated dress code, employees leaked the memo and swift media attention and public backlash quickly caused the coffee company to reverse course. Soon after, Starbucks not only changed its policy, it created its own Black Lives Matter apparel for employees to wear in stores.

Employees have no legal right to political speech inside the workplace, but some states' laws have protections for employees outside of work. Certain states, like California, prohibit employers from retaliating against employees for engaging in "political activities." Other states and jurisdictions more broadly prohibit employers from discriminating against employees based on party membership or for engaging in election-related speech and political activities.

Nonetheless, companies that limit employees' speech in the workplace may soon find themselves in the court of public opinion-forced to change their policies due to media pressure. This is due to employees pushing the difficult conversations forward and publicizing the internal policies and practices of their companies, which may contradict their public persona.

In workplaces around the country, employee pressure has caused companies to institute policies that reflect support for racial justice, such as implementing long-overdue diversity initiatives or observing Juneteenth as a company-wide holiday. Companies have donated millions of dollars to racial justice movements, yet employees are publicly calling out their employers for still perpetuating racial inequity by failing to recruit, promote or pay equally Black employees and other employees of color. These are prime examples of the cultural shift we are experiencing: public pressure on companies by employees to undergo substantive change.

Although there are no federal laws that protect an employee's right to speak at work about social issues, employers may not limit employees' speech on a discriminatory basis. Thus, for example, an employer may not discipline a Black employee for supporting a social movement in the workplace while allowing a white employee to do so. Furthermore, an employee does have a protected right, under the National Labor Relations Act, to discuss the terms of his or her employment, and thus may discuss issues of discriminatory treatment or racial inequity in the workplace, even if it is triggered by national conversations about racism. See 29 U.S. Code § 157.

On the other side of the discussion, employers have also acted against employees who make racist or offensive comments, both in and outside of the office. The convergence of the Black Lives Matter movement and the remote workplace necessitated by the COVID-19 pandemic have further blurred the line between the workplace and our personal lives. Individuals caught making offensive comments, whether on social media or on camera, are facing the repercussions of those beliefs in the workplace. All around the country, stories have emerged showing examples of employees being terminated for racist comments and actions made outside of work. In doing so, companies are affirmatively stating they do not agree with, support, nor will they tolerate this behavior.

Companies that value diverse and inclusive workspaces can use this moment as an opportunity to make a statement against the individual words and actions of its employees whose values don't align with the company. These changes are not just affecting lower-level employees. Senior executives at major companies such as Refinery29, Bon Appétit, Reddit, and CrossFit have resigned or have stepped down as a result of exposed acts of race discrimination or due to a lack of diversity in its offices, making way for more diverse leadership.

The past few weeks have proven to be a shift in the consciousness of our society, and we are likely to see these changes trickle down into our workplaces. Both employers and employees should seize this opportunity to institute lasting reform.

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