Judge tosses workers’ claims against Whole Foods after the store banned Black Lives Matter masks

CAMBRIDGE, MA – A federal judge dismissed most counts of a lawsuit filed against Whole Foods by employees claiming they were being racially discriminated against and that their right to free speech was being violated because of a policy against wearing Black Lives Matter face masks at work.

Twenty-seven plaintiffs had accused the Amazon-owned Whole Foods grocery chain in a nationwide class-action suit filed in Boston of selectively enforcing its dress code banning “visible slogans, messages, logos or advertising.”

Frith et al v. Whole Foods Market Inc., filed in July, claimed the employer only enforced the dress code when employees started wearing Black Lives Matter face masks and had not done so when they wore other slogans and advertising.

The claim was filed under Title VII of the Civil Rights Act of 1964.

The plaintiffs said that Whole Foods was sending workers home without pay or were imposing disciplinary action for wearing the masks.  They claimed Whole Foods permitted employees to wear other political messages and sports team logos.

On Friday, U.S. District Judge Allison D. Burroughs dismissed most of the claims in the U.S. District Court in Massachusetts. She said Whole Foods did not engage in racial discrimination or violate Title VII.

 The judge wrote that Title VII does not apply free speech to private workplaces.

“Title VII prohibits discrimination against a person because of race. It does not protect one’s right to associate with a given social cause, even a race-related one, in the workplace.

“At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace. However unappealing that might be, it is not conduct made unlawful by Title VII.”

The judge said that employees are free to try persuading Whole Foods to change the policy, express themselves outside of the workplace, or find somewhere else to work.

The judge did allow one claim included in the lawsuit to move forward. The claim was related to a retaliation allegation by an employee against the upscale grocery chain.

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Plaintiff’s attorney Shannon Liss-Riordan said she expects her clients to appeal the decision, saying in an email to Reuters:

“(The decision) “goes against the tide of case law recognizing the critical importance of eradicating race discrimination from worksites across our country.”

Whole Foods said that the dress code policy is in place to make employees feel safe in the workplace. A spokesman for the grocery store 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.”

The lawsuit was sparked last summer when the Cambridge, Massachusetts Whole Foods location sent seven employees home for wearing Black Lives Matter face masks.

Protesters led a boycott of the store, claiming the company was afraid of losing customers. One employee who was sent home said, “They don’t really want to choose a side.”

A spokesperson for Whole Foods said at the time that employees were given a choice:

“Team members with face masks that do not comply with the dress code are always offered new face masks. Team members are unable to work until they comply with the dress code.”

The retaliation claim permitted to continue centered around employee Savannah Kinzer, who was fired in part because of accumulated “points” for wearing a Black Lives Matter face mask.

Kinzer also claimed she was fired for encouraging other employees to wear the masks, and for filing a complaint with the Equal Employment Opportunity Commission and the National Labor Relations Board, according to the lawsuit.

Whole Foods denied Kinzer’s allegation saying she was dismissed for not working her assigned shifts, and added that the company had not fired any employees for wearing Black Lives Matter face masks. When the suit was filed, the company issued a statement:

“We recognize, respect, and take steps to ensure we do not impinge on employees’ legal rights.”

Judge Burroughs wrote in her decision:

“Given her burden at this stage, Plaintiff Kinzer has alleged facts sufficient to plausibly infer that her termination was causally linked to protected activity.”

Whole Foods instituted a new dress code in November, after the suit was filed, that banned any dress or face coverings that included busy patterns on clothing or face coverings, buttons or pins on employee aprons, ripped jeans, athleisure, and t-shirts with visible logos, slogans, messages, or flags of any kind.

An employee at the time reacted to the new dress code:

“When a lot of us started working at Whole Foods back in the day, it was a place where you could wholly be yourself and express your personality while still working your job.

“We understand that some parts of that have to go away. But we’re worried that it’s leaning toward a more super-corporate, you’re-just-another-cog-in-the-machine kind of employee situation.”

A Whole Foods spokesperson told Business Insider that the new dress code provided a “simplified” and “unified” policy across all stores:

“Like many of our policies, our dress code is in place to ensure that we are prioritizing operational safety and serving our customers by keeping the focus in our stores on selling the highest quality food and fulfilling Whole Foods Market’s purpose of Nourishing People and the Planet.”

Whole Foods and Amazon have both expressed support for Black Lives Matter in the past and have donated $10 million to the group.

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Author: Scott A. Davis

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