The message in the Supreme Court’s mask controversy

Chief Justice John Roberts reportedly asked everyone to mask up.
Chief Justice John Roberts reportedly asked everyone to mask up.
Image: Reuters/Jonathan Ernst
We may earn a commission from links on this page.

When the US Supreme Court blocked Biden’s vaccine-or-test mandate for large, private employers last week, it didn’t come as a surprise to many legal experts watching the case. Conservatives who opposed the rule had politicized the topic, and today’s Supreme Court has become disappointingly predictable when deliberating cases charged with partisan politics.

What was surprising about the Supreme Court’s ruling was the lead-up to it: Throughout court proceedings this month, one of the justices didn’t wear a mask, even as the Omicron variant raged in DC.

Reports are conflicting about whether Chief Justice John Roberts actually requested that everyone mask up (NPR says yes, a Fox news commentator says no), but either way, Justice Neil Gorsuch was not wearing a mask when he attended the court. And Sonia Sotomayor—not Gorsuch—has been working remotely, putting her on unequal footing, as the odd one out.

Critics saw Gorsuch’s unmasked face as a violation of basic decency in the workplace (or anywhere for that matter) made worse by his assigned seat directly next to Sotomayor’s on the bench.

But this isn’t just any workplace. Supreme Court justices are essentially colleagues for life. No doubt, the two will be sitting next to one another for many years to come.

What companies should know about mask mandates

In response to media attention, Sotomayor and Gorsuch issued a joint statement Jan. 19 saying they were surprised by accounts that Sotomayor had asked Gorsuch to wear a mask. “While we may sometimes disagree about the law, we are warm colleagues and friends,” they said, without clarifying whether Sotomayor was teleworking because Gorsuch was not masked.

Beyond the court, however, the debate it inspired raises questions that companies will have to face when—and if—they bring employees back to the office. Regardless of local masking regulations or vaccination guidelines, there will always be workers who are more vulnerable to covid than others. And there will always be employees who feel the rules don’t apply to them.

Company leaders and managers will have to determine who will be accommodated and who will not. Those decisions may well inform who’ll get to stick around and who will be sent home. They could also put employees in the position of making their own decisions about where and how they should work.

Hakan Ozcelik, a professor of management at the Sacramento State College of Business, says the worst thing a company can do is leave employees in limbo to navigate interpersonal debates about masks or vaccination. In fact, his research during the covid pandemic suggests that company mandates around health and safety are interpreted by employees as a cue about how much a company cares about its people, so the policies ought to be well-considered and thorough.

Once people finally get back to the office, conversations about mask mandates may be charged with pent-up emotions of frustration, anger, and resentment, he says, but the corrosive power of toxic emotions in the workplace is generally underestimated by company leaders. The next few months may change that.

To get ahead of potential conflicts, Ozcelik advises that companies do the following:

  • Communicate the company’s masks policies clearly, explaining the science behind the rules. Someone who chooses to ignore masking rules ought to understand all the consequences of that choice.
  • Make that communication memorable by using multiple forms of media, including short videos. Feature personal stories and anecdotes that demonstrate the value of wearing a mask.
  • Craft a policy that puts science-backed health protocols first, and is fair to everyone, but also logical—it must stand up to employee scrutiny. (If someone works on-site alone for eight hours per day, for example, they probably don’t need to wear a mask, he says.)
  • Highlight to all employees that their behavior matters, and ask staff for input into covid protocols as the pandemic situation changes.
  • Use this transitional period to build or reinforce a culture of respect within your company.  Remind people of the organization’s commitment to basic social expectations, like the assumption that people will show each other compassion.

Heidi Scott, chief learning officer at, a social networking site for human resources managers, approaches it this way: Remind workers that the company wants to bring people together, that it respects those who have wildly differing opinions on some polarizing topics, and that its mask policy is meant to protect everyone, including employees who object to masks. Hopefully, organizations will also have a value statement somewhere, on a wall or shared document, that includes the word “respect.”

At some point, “you have to hope you’ve hired some good-willed people,” she says. Still, even ill-willed people have a right to their views, she points out, and some may leave, “which is not a horrible thing.”

“There’s going to be an organization out there that’s perhaps better suited to who they are, where they want to go, and how they want to work.”  

Quartz at Work is available as a newsletter. Click here to get The Memo delivered directly to you inbox.