Employee Lawsuit Involving Black Lives Matter Mask and Protests Proceeds

Takeaway: Despite this decision, several courts, including the 1st U.S. Circuit Court of Appeals, have recognized that employers can legitimately bar employees from wearing controversial slogans as part of their dress codes.

A Whole Foods Market Inc. employee who wore a Black Lives Matter face mask and engaged in protests before being terminated could proceed with retaliation claims, the 1st U.S. Circuit Court of Appeals ruled.

In the summer of 2020, amid pandemic mask mandates and nationwide racial justice protests, Whole Foods began disciplining employees who wore face masks to work supporting the Black Lives Matter movement, citing its dress code. Whole Foods had a system of progressive discipline consisting of a verbal warning, one or more written warnings, and a final written warning, which applies to excessive tardiness or absenteeism and dress code violations.

The tardiness policy gave examples of several scenarios for which the company could excuse lateness due to circumstances beyond the employees’ control. Unforeseen or extenuating circumstances that merited leniency included transportation breakdowns such as train delays or a stolen car.

An employee who worked at a Whole Foods store in Cambridge, Mass., from April 2020 until her termination in July 2020 decided to start wearing a Black Lives Matter mask at work in late June 2020. She did so to express support for the Black community and to protest Whole Foods’ discipline of employees at other stores. When she wore the mask to work, the store manager reprimanded her and instructed her to replace it. She refused and repeatedly wore Black Lives Matter masks to work and was sent home on six occasions within two weeks. As a result, she received a verbal warning.

The employee persisted in wearing the mask and sought to encourage co-workers to do so. She acquired dozens of masks to distribute to her fellow workers, leading several other employees to be sent home. She organized protests outside the store that attracted media attention identifying her as a protest leader. She also organized a town hall with Whole Foods workers from several states, formed a chat group to coordinate protest activity, and created a crowdfunding resource to offset lost wages for protesting workers. Her activity was well known to Whole Foods’ management, including the regional president, to whom she sent a list of demands and a video of a protest.

The employee also was disciplined several times for matters unrelated to her protests that hastened her termination. On one occasion, she was on vacation and forgot to arrange coverage for her scheduled shift. This was deemed a no call/no show, and she received a final written warning. That meant that receiving four more attendance points within 90 days would result in termination. Over the next 10 days, she received one point for wearing a Black Lives Matter mask and two more for tardiness.

On July 18, 2020, the employee told her supervisor that she would be late because her bicycle tire had been stolen. The supervisor assured her that the point would be excused because the circumstances were beyond her control. The store manager consulted with regional management regarding the matter. A Whole Foods vice president and executive vice president met to discuss her termination and told the store manager that the point was not to be excused.

In the meantime, the employee met with the store manager during her shift and informed him of charges that she had filed with the U.S. Equal Employment Opportunity Commission and the National Labor Relations Board, which she emailed to him. Several hours later, the store manager summoned her and explained that Whole Foods was terminating her for her disciplinary points.

Two other Whole Foods employees also wore Black Lives Matter masks until the company terminated them for repeated violations of the dress code and attendance policies. The three employees sued under Title VII of the Civil Rights Act of 1964, alleging retaliation. The district court determined that they could not show that Whole Foods engaged in retaliation and thus granted Whole Foods’ motion for summary judgment. The employees appealed to the 1st Circuit.

On appeal, the 1st Circuit upheld the summary judgment granted against the two employees who wore Black Lives Matter masks, relying upon an earlier decision in which it recognized employers’ right to enforce their dress codes against Black Lives Matter attire. However, the court found that the employee who engaged in other protest activities had presented sufficient evidence to support a retaliation claim in Whole Foods’ refusal to waive her final tardiness point.

Kinzer v. Whole Foods Market, Inc., 1st Cir., Nos. 22-1064 and 23-1100 (April 24, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.