Whole Foods has settled a lawsuit challenging the firing of a worker who did not remove her Black Lives Matter face mask when asked to and who alleged unlawful retaliation at the grocery chain.
We’ve gathered articles on the news from SHRM Online and other outlets.
Lawsuit’s Allegations
Whole Foods began disciplining employees who wore face masks supporting Black Lives Matter during the COVID-19 pandemic. Whole Foods cited its dress code, which it said was meant to foster a welcoming, safe, and inclusive shopping environment. The plaintiff and some other employees resisted, saying the company’s dress code previously went unenforced.
The plaintiff said she was then fired for protesting outside her store, rejecting demands to stop wearing the mask, and talking to the press. The plaintiff and other employees sued in July 2020 shortly after her firing, arguing on behalf of other Whole Foods workers that the mask ban was racially discriminatory. Courts rejected those discrimination claims, but the 1st U.S. Circuit Court of Appeals in April revived the plaintiff’s individual claim that her firing constituted illegal retaliation and said a jury should resolve the dispute.
(Reuters and SHRM Online)
Timing of Firing
The plaintiff was fired shortly after she informed store management that she had filed complaints with the U.S. Equal Employment Opportunity Commission and the National Labor Relations Board, according to the lawsuit. Lawyers for the plaintiff said in a filing that the two sides had reached an agreement to settle the case. Terms were not disclosed. Neither Whole Foods nor attorneys for the plaintiff could be reached for comment.
Consistency Is Key
Policies and practices can become problematic when employers allow some political statements but forbid others. Employers should be mindful of how they have previously applied their policies. For example, if the employer has not been stringent about enforcing its dress code in other circumstances, then enforcing the policy in a particular situation may make an employee feel singled out and discriminated against.
More Awareness Needed
U.S. workers and HR professionals say racial discrimination exists in the workplace, but there is a vast difference in perception of how widespread it is, depending on the race of the person you talk to, according to a report SHRM released in 2020. About half of Black HR professionals (49%) said they think race-based or ethnicity-based discrimination exists in their workplaces; only 13% of white HR professionals agreed.
Retaliation Claims Can Be Difficult to Defend
When employees complain about discrimination or harassment, employers must ensure that employees aren’t retaliated against for raising these issues. Otherwise, businesses may face legal liability even when the underlying claim isn’t proven. Retaliation cases are difficult for an employer to win before a jury.
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