Black Lives Matter: Adjusting Workplace Policies and Practices
October 5, 2017, less than 3 years ago, the world read about the rape and sexual harassment allegations against Harvey Weinstein, bringing the Me Too movement to the forefront of American life. Since then, businesses across the United States have been addressing internal issues related to sexual harassment and discrimination that have long gone unnoticed or ignored. Early this year, Mr. Weinstein was found guilty and sentenced to prison for 23 years. In June 2020, as noted in a previous NewsFlash, the United States Supreme Court ruled that those same nondiscrimination laws at the federal level that protect women from sexual harassment and discrimination in the workplace, protect “anyone” affected by discrimination or harassment, if such action is based on the person’s gender, gender identity, or sexual orientation. This decision will affect employers across the United States. At about the same time, the Black Lives Matter movement is sparking change and activism across the country following the death of George Floyd, who died at the hands of the police in Minneapolis Minnesota on May 25, 2020.
Businesses across the United States are taking this time to reevaluate their internal and external presence as it relates to acceptance, acquiescence, or rejection of discriminatory or harassment of individuals for any reason. Some businesses have made public statements regarding their support for racial justice and equality; others have donated money to Black Lives Matter organizations. Still, many employers are conscious of the long-term plans needed to ignite a lasting change in their business and society as a whole.
All employers in the United States should consider a thoughtful and complete review of their employee handbook. Every employer should have a clear statement in the handbook prohibiting all gender and race-based discrimination and harassment and committing to their drive to achieve a more diverse and inclusive workplace, especially in light of the Black Lives Matter movement. Although the prohibition on racial discrimination and harassment in the workplace is not new, and statements acknowledging such are staples in employee handbooks, many handbooks we have reviewed over the years focus on sex-based discrimination and harassment. For instance, a handbook may provide examples of prohibited conduct with respect to sexual harassment but may omit examples of prohibited racial harassment. Expanding current policies and procedures will assist the employer in expressing its position in this new push on diversity.
Additionally, it may be valuable for employers to release an internal statement recognizing the Black Lives Matter movement and diversity issues generally. Such a statement might describe the business’s efforts to improve the racial climate and diversity in their workplace. While empty promises are not beneficial, statements acknowledging the unacceptability of continued oppression of Black Americans and specific declarations describing how the business is going to respond demonstrate a company’s desire to improve. Of course, sincerity is important. One way to address the topic successfully is to speak to employees on a personal level, rather than through the lens of the corporate communications department.
Another possible implementation for employers to consider is regular diversity and inclusion training. Manager-specific training might focus on signs and patterns of gender and racial harassment and promoting an inclusive work environment. Alternatively, employee training may explain and expand on the business’s policies regarding discrimination and harassment, complaint procedures, and employees’ rights and responsibilities at work.
Recently, Starbucks held a successful one-day racial bias training program for all managers and employees to bring awareness to unconscious biases, foster empathy, and build social connections. The training began with a video featuring first-person accounts about the emotional and psychological toll of dealing with racism. Afterwards, the group discussed their personal experiences with racism and theories about race relations.
Some employers are also grappling with how to respond to employees wearing Black Lives Matter apparel. The answer is centered around whether employers can legally prevent employees from wearing Black Lives Matter messaging at work. While dress codes are legal, they cannot be discriminatory or enforced in racially discriminatory ways. For example, it would be illegal to fire a Black employee for wearing a Black Lives Matter shirt but not fire a non-Black employee for wearing an All Lives Matter shirt.
Major companies like Starbucks, Taco Bell, Wawa, and Whole Foods suffered major backlash after forbidding employees from wearing Black Lives Matter symbols on their clothing because of dress code policies prohibiting any political or religious attire. Most of the companies have since released statements allowing for employees to express their support through Black Lives Matter masks, shirts, pins, and other merchandise. Other major companies, such as Nike, Twitter and Citigroup have openly aligned in support of the Black Lives Matter movement.
If you have questions regarding what changes to the employee handbook are best for your business or employees, or if you would like further information on diversity training for your business, please contact a member of Koley Jessen’s Employment Group.
Special thanks to our Summer Associate, Emily Locke for her help in writing this article.