A group of Black and non-Black Whole Foods employees claimed that their employer unlawfully discriminated against them because of their race and their association with people because of their race based on their employer's prohibition of the wearing of "Black Lives Matter" face masks starting in June 2020 following the death of George Floyd.
In support of their claim they argued:
- Whole Foods previously had failed to enforce its policy that "prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related."
- Whole Foods previously allowed its employees to express support for their LGBTQ+ coworkers through their apparel without discipline.
- After employees of all races started wearing "Black Lives Matters" masks "to protest racism and police violence against Blacks and to show support for Black employees," Whole Foods began enforcing its previously unenforced policy by sending employees home without pay and assigning disciplinary points that would affect an employee's eligibility for raises and could lead to termination.
The 1st Circuit Court of Appeals affirmed the district court's dismissal of the employees' race discrimination and retaliation claims pursuant to Whole Foods' motion to dismiss. It did so for the following reasons.
1/ Because Whole Foods treated its Black and non-Black employees exactly the same by prohibiting all from wearing "Black Lives Matter" masks, the plaintiffs could not show that that any challenged employment action was taken "because of" the race of
any individual plaintiff.
2/ While a "a reasonable inference can be drawn from [the] factual allegations that Whole Foods started enforcing
its previously unenforced dress code policy so that it could
prohibit employees from wearing Black Lives Matter masks in its
stores, … [c]ommon sense … suggests that Whole
Foods would have had non-race-based reasons in June 2020 for
prohibiting the wearing of Black Lives Matter masks" — specifically the coordinated and visible messaging caused by the widespread use of masks in response to Covid-19.
3/ After Whole Foods started enforcing its "visible slogan policy" against those employees wearing BLM masks, it thereafter consistently enforced that same policy against other logos, such as SpongeBob SquarePants.
4/ Whole Foods' decision to begin enforcing its existing policy against employees wearing masks with BLM messages "may be
explained by the 'obvious alternative explanation' that Whole
Foods did not want to allow the mass expression of a controversial
message by employees in their stores."
5/ The plaintiffs failed to allege any facts to undermine that "obvious alternative explanation" and to show that Whole Foods specifically targeted anyone for wearing a BLM mask.
6/ As to the employees' retaliation claim, they merely alleged that their message targeted racial discrimination present in society generally, not within their place of employment specifically.
While I think Whole Foods made the incorrect business decision to ban its employees from wearing BLM masks, I also think that the Court made the correct legal decision in concluding that the decision was not discriminatory. If Whole Foods started enforcing its visible slogan policy with BLM masks and enforced it thereafter against other logos (e.g., SpongeBob), I can't see how the Black employees could hope to prove that their employer targeted them because of their race and non-Black employees for being allies.
* Photo by Lorie Shaull on Flickr (CC BY 2.0)