The Home Depot's request for employee to remove 'BLM' letters from apron was justified, 8th Circuit rules
Special circumstances justified the Home Depot’s request for a Minneapolis-area employee to remove the letters “BLM” from his apron three months after the 2020 death of George Floyd in Minneapolis, a federal appeals court ruled last week.
In a Nov. 6 opinion, the 8th U.S. Circuit Court of Appeals at St. Louis ruled that the National Labor Relations Board wrongly evaluated the Home Depot’s special circumstances defense when it ruled for the employee.
At issue was a provision of the National Labor Relations Act known as Section 8(a)(1), which prohibits employers from interfering with concerted action by employees for collective bargaining or for mutual aid or protection.
The Home Depot managers had told the employee that the reference to Black Lives Matter violated its dress code banning the display of political messages unrelated to workplace matters. The district manager suggested alternatives, such as pins supporting Black History Month or diversity and inclusion.
The employee, Caro Linda Bo, refused to remove the lettering and resigned.
The National Labor Relations Board ruled for the employee, finding that Bo was engaging in protected concerted activity. Other employees also displayed “BLM” on their aprons, and it happened at a time when they were raising concerns about racial mistreatment in the workplace and the Black History Month display at work was vandalized, the NLRB noted.
The Home Depot argued that even if the employee’s refusal to remove the “BLM” letters was concerted activity, special circumstances justified its request for removal, including the possibility of worsening employee dissension and damage to customer relations.
The 8th Circuit agreed with the Home Depot.
“Context matters,” the appeals court said in an opinion by Judge James B. Loken, an appointee of former President George H.W. Bush. “The activity in dispute was not a display at a random location in the United States; it was not at a normal moment in time; and it was not a generic message for equal rights or employee protection. Bo’s BLM message was broadcast only a few miles from the site of George Floyd’s murder. Community tensions were extraordinarily high, and significant unrest and turmoil that at times closed this Home Depot store followed. Bo’s BLM message divisively—and at times violently—split public opinion on a hot-button issue. …
“This was a business decision made to preserve the store’s apolitical face to customers and safeguard employee safety in a risk-filled environment.”
Floyd was a Black man who died when a white police officer in Minneapolis pressed a knee to his neck during an arrest in May 2020.
Hat tip to Reuters and Law.com, which had coverage of the decision.
See also:
1st Circuit allows suit by fired worker who refused to remove Black Lives Matter face mask
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