Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: I am the VP of Culture, Inclusion & Belonging at a mid-size firm in the financial sector. With a pending Return to Office (RTO) date for most of our workforce just a few weeks away, I want to get ahead of an issue that I have seen developing among members of both our employee and client populations during some in-person interactions that we have had over the past few months: “mask shaming.” I wince anytime I hear an employee tell a masked colleague “You must not be vaccinated!” or a client who challenges an employee to take off their mask because they sound “too muffled,” or complains that they “can’t see [their] smile.” I am also seeing certain (unmasked) employees on our team who don’t seem to be as collegial with those who are continuing to wear masks.
I obviously want both our employees and our clients to feel safe and confident about their face-to-face dealings with one another, but I am concerned about escalating tensions around the issue of masking during this next phase of the pandemic. Am I the only business leader who is having concerns about how to manage this issue?
—Managing Mask Wars in Michigan
Dear Managing Mask Wars in Michigan,
It is hard to realize that this month marks the two-year anniversary of being plunged into a global pandemic and all the new protocols that quickly re-defined how we were expected to work, socialize, and even survive. Socially distance. Wash your hands. Mask up. Repeat.
As a result of well-entrenched safety rituals our brains have now been programmed to follow, the process of deactivating these practices may not necessarily coincide with RTO orders from employers in the coming weeks and months.
While I have a deep appreciation for the fact that most of us would just like to regard a KN95 mask as a fashion accessory that is as passé as MC Hammer pants or leg warmers, at this stage of the pandemic, I would urge business leaders to be mindful of the factors that may be driving employees’ personal choices to continue masking as well as recommended practices for managing this emerging form of bias in the workplace.
We know that most workers with jobs that can be done from home say that, if given the choice,1 they would like to work from home most or all of the time when the pandemic is over. For various reasons, however, many employers are looking forward to reverting to pre-pandemic norms of in-person work.
Given that the pandemic has been a life-altering experience for most people, however, the re-entry process will take different paths for different people. We would all do well to keep in mind that many of your employees may have either personally battled COVID-19 or be among the “long-haulers”2 who continue to cope with the array of persistent symptoms long after the acute illness is “resolved.” Others may have lost a loved one to the virus. Yet others may be concerned about their own medical vulnerabilities and health outcomes, or those of family members with whom they share a household. In sum, we don’t know all the circumstances surrounding individual decisions to remain masked. Accordingly, and on the most fundamental level, it will be important for employees not to take it personally if colleagues are not yet ready to “de-mask.” Jurisdictional and/or occupational mask mandates aside, the decision to mask or not will need to be regarded as a personal choice of safety and comfort for which employees should not be shunned or—worse yet—harassed or discriminated against.
Back to Basics on the Topic of Bias
Since you coined a relatively new concept for many in your letter—“mask bias”—let’s start with a brief reminder about some bias basics. Bias is a tendency or inclination that results in judgment without question. Implicit bias is a relatively automatic and unconsciously held set of associations that people have about various topics and social groups, without even realizing that they learned them or continue to carry them in their “mental file cabinets.” These biases stem from our socialization, such as family and cultural conditioning that we typically receive as children, along with our life experiences or “triggers.” Unconscious biases can touch on any subject matter and may be positive or negative. Our brains scan, filter, judge, and categorize information at all times to help us navigate our worlds—and we don’t even know we are doing it.3
Historically, epidemics have been considered to be a time of fear, confusion, and helplessness.4 Since the start of the pandemic, we have witnessed emotional debates, protests, and even “trucking convoys,” arguing about aspects of the pandemic from its origins, the science behind CDC-recommended methods of infection-control, people’s decisions to vaccinate or not, to corresponding measures of masking or not. As a result, masks have come to “trigger” different beliefs and emotions for different people. For some, masks signify that the person is either sick with the virus, unvaccinated, or both. Some are reluctant to wear masks in an effort to avoid being stigmatized as a “carrier.”5 Additionally, some see wearing or shunning masks as political statements to which they reflexively react either positively or negatively.
“Othering” behavior is not restricted to characteristics that typically come to mind when we consider the issue of bias. The evolution of societal attitudes—be they positive or negative—towards dimensions like disability, race, gender, ethnicity, or sexual orientation, for instance, is utterly dynamic. The emerging attitudes towards and interactions among those individuals who decide to mask or not is an indication of this.
Responding to Mask Bias as a New Form of “Othering”
Within this context, business leaders like yourself in the Diversity, Equity & Inclusion (DE&I) or HR spaces should be mindful that non-inclusive or disrespectful behavior on the basis of employee masking preferences does not go unaddressed.
Be on guard. These workplace behaviors may be especially dangerous when employees who may complain of non-inclusive conduct because of their mask-wearing habits also belong to “traditional” categories of people who experience “othering” like older employees, people living with disabilities, and individuals of Asian descent.
To underscore this point, you should be aware that historically marginalized racial groups are more likely to engage in mask-wearing in response to COVID-19 when compared with white counterparts. More specifically, Black, Latinx, and Asians are more likely to wear masks than others.6 It is worth noting that anti-Asian racism has steadily increased since the beginning of the pandemic with people blaming Asians for the virus.7 As you may be aware, we have seen a 339% spike in anti-Asian hate crimes in 2021 in the United States compared with 2020.8
Other studies confirm that mask-wearing behaviors are also “genderized,” with women more likely to wear masks than men (similar to seatbelt-wearing tendencies), engendering societal attitudes that masks symbolize weakness, vulnerability, and fear.9
Given that the pandemic has exacerbated preexisting resentment against certain marginalized communities, it is possible that employees who are feeling “othered” as a result of their masking choices may have inter-connected complaints based on their race, ethnicity, gender (including gender stereotyping), age, or disability.
Craft Your Mask Messaging to Help Minimize Legal Risk
It is interesting that as a diversity professional with concerns about your company’s culture during an evolving global pandemic, you did not mention any legal concerns. Inasmuch as attorneys look at the world from a different perspective, you would do well to include both HR and legal counsel in planning for how your company intends to support and respond to employees who wish to continue masking. Aside from practical concerns about, and guidelines for, your company’s commitment to creating a positive and inclusive culture for employees who are returning to work, your in-house counsel will be understandably wary of any scenario that could come back to haunt the company from a legal perspective, particularly as it may prompt potential EEO complaints about this developing issue. You don’t want to be on the receiving end of a complaint alleging harassment for an employee’s wish to continue wearing a mask during this stage of the pandemic.10
“Next” Practices for Your Consideration
While it’s our hope that this pandemic—and all of its reminders—soon becomes a scourge of yesteryear, it is still part of our business reality. Accordingly, you should consider the following action strategies:
- Expressly include “masks” as a clothing item in your dress code and grooming policies to “normalize” it for your company and your culture.
- Consider having your counsel develop a statement for you to disseminate about your company’s continued support for COVID-19 safety protocols, expressly identifying the choice to wear masks as an acceptable and personal one, along with a statement that the company will not tolerate any harassment from anyone because of this choice.
- Determine—in advance—how your organization will communicate with third-party clients or customers about an employee’s decision to mask in the event of challenges that come from those parties with whom you do business. This may be a good opportunity to illustrate just how broadly your company views its commitment to DE&I.
- Integrate masking as a form of “bias” in your periodic implicit bias and/or anti-harassment training initiatives by specifically including scenarios that include “mask bias” for discussion so that participants can understand expected standards of conduct around employees’ personal choices on this issue. In so doing, provide practical suggestions on how to respond and ensure that there are mechanisms in place when employees do believe that they have experienced an incident of “mask shaming.”
- Ensure that leadership members are advised about how they are expected to respond to complaints involving this issue.
- Don’t limit the topic of masks to your DE&I and anti-harassment training initiatives only. Make sure that it’s also part of your RTO onboarding messaging and leadership development initiatives—at least while we are all still “living with COVID.”
- Recognize that there may be some employees who will choose to mask well past our current pandemic status—when it is officially declared an “endemic”—and perhaps beyond.
As many organizations get ready to welcome employees back and in person during this unprecedented era, employers have the opportunity to be extremely deliberate about expanding their views about what it means to be genuinely inclusive and even legally compliant in some cases, where the decision to mask or not, is concerned. Business leaders can be mindful about how policies and procedures around masking should be structured and communicated. Ultimately, Managing Mask Wars in Michigan, we would urge you be as patient and respectful as you can be about masking preferences in implementing your RTO plans.
1 See, e.g., Kim Parker et al., Covid-19 Pandemic Continues to Reshape Work in America, Pew Research Center, (Feb. 16, 2022) (finding that “[A]mong those who are working from home all or most of the time, 78% say they would like to continue to do so after the pandemic, up from 64% in 2020.”).
2 See, e.g., Melinda Wenner Moyer, Long-Haul COVID Cases Could Spike after Latest Wave, Scientific American (Feb. 3, 2022) (finding that “long-Covid” is estimated to afflict as many as 30% of all people infected with the coronavirus).
3 Cindy-Ann Thomas, Dear Littler: Am I the Only GC Who Doesn’t Fully Embrace Implicit Bias Training? (Apr. 22, 2019).
4 See, e.g., Jeremy Howard et al., An evidence review of face masks against COVID-19, PNAS (Jan. 11, 2021).
6 See e.g., Brittany Hearne and Michael D. Nino, Understanding How Race, Ethnicity, and Gender Shape Mask-Wearing Adherence During the Covid-19 Pandemic: Evidence from the COVD Impact Survey, Journal of Racial and Ethnic Health Disparities, 9:176-183 (2022). See also Michael H. Haischer et al., Who’s Wearing a Mask? Gender-, age-, and location-related differences during the Covid-19 pandemic., PLOS One Research Article, (Oct. 15, 2020).
7 See e.g., Cindy-Ann Thomas, The Other Ugly Virus of 2020: Anti-Asian Bias, Littler Podcast (Apr. 15, 2020).
8 See e.g., Russell Contreras, Record-breaking hate crime spree in major cities, Center for the Study of Hate and Extremism (Unpublished Study) (Feb. 5, 2022) (finding that from March 19, 2020 to December 31, 2021, a total of 10,905 hate incidents against Asian American and Pacific Islander (AAPI) persons were reported to Stop AAPI Hate.
9 See e.g., Who’s Wearing A Mask? Women, Democrats and City Dwellers, The New York Times (June 2, 2020).
10 See e.g., EEOC v. U.S. Drug Mart (No. 3:21-cv-00232, W.D. Tex.), where an asthmatic pharmacy technician in Texas was allegedly harassed into quitting because he wouldn’t take off his mask.