Court Upholds Discipline of Workers Wearing Black Lives Matter Masks

Allen Smith, J.D. By Allen Smith, J.D. February 9, 2021
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a Whole Foods Market store

​On Feb. 5, a district court in Massachusetts dismissed most of the claims by Whole Foods Market workers who were disciplined for wearing Black Lives Matter masks in violation of the company's dress code policy. But the court let one retaliation claim proceed.

"We are disappointed with the court's conclusion that advocating on behalf of Black employees is not protected activity under Title VII" of the Civil Rights Act of 1964, said Shannon Liss-Riordan, the plaintiffs' attorney and a lawyer with Lichten & Liss-Riordan in Boston. "The court adopted a very narrow frame for analyzing race discrimination, which goes against the tide of case law recognizing the critical importance of eradicating race discrimination from worksites across our country."

She added that the decision by Whole Foods and its parent company, Amazon, "to punish employees for expressing that Black Lives Matter, while allowing employees to express many other messages, is extremely troubling. We are planning to appeal the decision."

A Whole Foods spokesperson said, "We remain dedicated to ensuring our team members feel safe and free from discrimination and retaliation at Whole Foods Market. We agree with the court's decision and appreciate their time and attention."

Court's Decision

Twenty-eight plaintiffs sued Whole Foods, alleging that its discipline of employees in several states for wearing Black Lives Matter masks constituted unlawful racial discrimination in violation of Title VII. The plaintiffs also alleged that Whole Foods' discipline of employees for opposing its policy was unlawful retaliation.

Until the plaintiffs began wearing Black Lives Matter masks in June 2020, Whole Foods' dress code policy was rarely enforced, according to the plaintiffs. "For instance, employees wore items with LGBTQ+ messaging, National Rifle Association messaging, the anarchist symbol, the phrase 'Lock Him Up,' and other non-Whole Foods messaging," the court stated. "Even in connection with masks specifically, Whole Foods has not strictly enforced the policy, permitting at least one employee to wear a SpongeBob SquarePants mask."

"Putting aside the wisdom or fairness of defendants' decision to aggressively discipline employees for wearing BLM [Black Lives Matter] attire, particularly when defendants purportedly allowed employees to wear clothing with other messaging, inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination," the court stated. "Title VII does not protect free speech in a private workplace."

The court noted that the plaintiffs come from a variety of racial backgrounds and concluded there was no race discrimination. The district court also rejected the associational discrimination theory, which asserted that Whole Foods discriminated against Black employees and other workers associating with and advocating for Black employees in violation of Title VII.

The court did permit one of the plaintiff's retaliation claims to proceed, noting that she was terminated after filing charges with the Equal Employment Opportunity Commission and the National Labor Relations Board.

Employee Relations Considerations

"An employer's best practice, from an employee relations and moral standpoint, as well as a legal one, is to implement workplace civility and professionalism rules related to political speech with a business purpose in mind—such as fostering productivity and collegiality—and to consistently enforce these rules regardless of the political messaging," said Eve Klein, an attorney with Duane Morris in New York City.

A selectively enforced dress code may violate a company's mission and core values, said Tom Hogan, SHRM-SCP, professor of practice in human resource management at The Pennsylvania State University School of Labor and Employment Relations in University Park, Pa. Hogan, who holds a doctorate in management, also serves on the Society for Human Resource Management Blue Ribbon Commission on Racial Equity.

Even if restrictive dress code policies are legal, "companies are risking the cost of bad publicity, low employee morale and even protests by restricting certain forms of expression," said Jolena Jeffrey, an attorney with Katz, Marshall & Banks in Washington, D.C. "For small businesses and startups, prohibiting all messaging and having a clear nondiscriminatory dress code may be the best course going forward. However, larger companies should look more closely and consider changing their policies to reflect sensitivity to the current concern with the prevalence of racism."

"The easiest way to go is to either prohibit all political or social justice expression or allow all of it," said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Fla. If an employer allows all expression, it needs to be careful in addressing employee disputes centered on political or social justice disagreement, he noted. "Much will also depend on the employer's particular corporate culture or social responsibility view," he said.

A risk in prohibiting all political or social justice expression is that employees will feel silenced, cautioned Abi Adamson, co-founder of The Diversity Partnership in London.

Employers that wish to offer a more nuanced environment should consider their goals and the context in which they are advancing those goals. For example, social and political messaging may be appropriate within a diversity, equity and inclusion program, noted Michael Kantor, an attorney with Weiss Serota Helfman Cole & Bierman in Fort Lauderdale, Fla.

'Tough Choice'

"America is very polarized right now," said Kevin Johnson, an attorney with Johnson Jackson in Tampa, Fla. "To the extent that an employer's workforce or its customer base reflects that polarization, it has a tough choice to make. It must weigh whether it is more concerned about adverse reactions from customers to speech by employees on social issues or more concerned, if it bans such speech, about adverse reactions from its employees and potentially customers who would be in favor of the speech it has banned."  

An employer that permits political messages nonetheless may prohibit other messages that are profane, defamatory or malicious; promote or support discrimination; express antagonism toward immigrants or toward a particular sexual orientation or gender expression; are sexist or sexual; or are threatening, said Mark Girouard, an attorney with Nilan Johnson Lewis in Minneapolis.

As for this ruling, unless reversed, it reinforces employers' broad authority to limit employees from promoting political messages on their workplace attire, said Dan Prywes, an attorney with Morris, Manning & Martin in Washington, D.C.

This decision is Frith v. Whole Foods Market Inc., D. Mass., No. 20-cv-11358.

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