Will Wearing a BLM Hat at Work Get Me Fired?

You may have read recently that a Taco Bell employee was fired for wearing a “Black Lives Matter” hat to work. “Doesn’t that violate the First Amendment?” you might be asking. The answer is, as usual with the law, “It depends!” Are you working for the government or a private employer?
BLM - Black Lives Matter

The Bill of Rights

The first ten amendments to the US Constitution are called The Bill of Rights. They were adopted to curb the power of the government in its relation to the individual by guaranteeing to each certain rights and liberties—like freedom of speech, press, and religion and the due process of law. The Bill of Rights also reserves all powers not delegated to the Federal Government to the people or the States.

F**k the Draft

An illustration of the First Amendment’s restriction on governmental power is found in a US Supreme Court case, Cohen v. California, 403 U.S. 15 (1971).

Mr. Cohen was ticketed for wearing a jacket that said “Fuck the Draft” in a municipal courthouse as an expression of his views about the Vietnam War and the draft. The Court held that the First Amendment’s free speech protections prohibited his conviction for disturbing the peace (as long as he was not engaging in violent behavior or threats of violence).

The Court said it is “often true that one man’s vulgarity is another’s lyric,” and “it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

And, finally, that “the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.” 403 U.S. at 25-26.

one man's vulgarity is another's lyric

Does the First Amendment Protect Workers in the Workplace?

Mr. Cohen was not at his workplace at the time he was ticketed for wearing his jacket. As said, the First Amendment acts as a curb on governmental conduct.

So, unless a private entity exercises a function traditionally exclusively reserved to the states, such as a private employer providing health care services to prison and jail inmates per a contract with the government, a private employer is not bound to follow the First Amendment.

In Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019), the Supreme Court found “that operation of public access channels on a cable system is not a traditional, exclusive public function,” and so the First Amendment did not apply to such stations.

On the other hand, the First Amendment does protect government workers from discipline for supporting a particular political candidate, as long as such support does not interfere with the efficiency and effectiveness of government service, or if the employee speaks out as a private citizen on a matter of public concern. Heffernan v. City of Paterson, 136 S. Ct. 1412, 1417 (2016).

If a government employer did allow employees to wear hats that conveyed a message, it cannot allow one type of message, such as “Black Lives Matter” and prohibit another type of message, such as “Make America Great Again.” That is known as content discrimination, which regulates speech based on the substance of what it communicates, and such discrimination is banned by the First Amendment. R. A. V. v. St. Paul, 505 U.S. 377, 381.

The St. Paul case, written by Antonin Scalia, found a St. Paul, Minnesota ordinance that made it illegal to place on public or private property a burning cross or Nazi swastika if one had reasonable grounds to know that doing so would arouse anger, alarm or resentment, to be “unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

CONCLUSION: You Can be Disciplined for Conveying a Principled Stand in the Workplace

So, if you have a private sector job, you can be disciplined, even fired, for wearing a hat in the workplace that your employer finds offensive.

If you have a government job, you still cannot wear the hat, mask or other apparel at work if doing so would interfere with the efficiency and effectiveness of your job.

Since co-workers may object or not agree to the message conveyed by your hat, wearing such a hat may get you disciplined for disrupting the workplace.

To avoid such an outcome, simply wait to clock out and leave the premises before donning your hat.

If you or someone you know in Pueblo or Southern Colorado has experienced a civil rights violation in the workplace send me an email or a text about it.

If you need legal counsel, please visit my civil rights law page to learn how I can help.

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