Publications

Earlier this week, the First Circuit Court of Appeals ruled that Whole Foods’ ban on workers wearing Black Lives Matter face masks did not amount to race-based discrimination or retaliation.

In this case, Frith v. Whole Foods Mkt., Inc., the plaintiffs sued after being sent home without pay or otherwise disciplined for wearing face masks bearing the phrase Black Lives Matter. The plaintiffs’ contention was that Whole Foods and its parent company, Amazon, selectively enforced a previously unenforced dress code policy banning “visible slogans, messages, logos, or advertising that are not company-related” and thereby violated Title VII’s prohibition of race-based discrimination and retaliation.

In affirming the district court’s dismissal of the plaintiffs’ claims, the First Circuit noted that although the plaintiffs’ theory that Whole Foods discriminated against Black employees based on their race and discriminated against non-Black employees based on their association with Black coworkers was “technically viable,” the claims nonetheless failed due to an absence of plausible factual allegations discounting the “obvious alternative explanation” that Whole Foods did not want to sanction a mass expression by employees of a controversial message. Notably, plaintiffs pled that Whole Foods posted on its website, “Racism has no place here” and “We support the black community and meaningful change in the world,” further supporting an obvious alternative explanation that “Whole Foods was not expressing dislike of the pro-Black aspect of the ‘Black Lives Matter’ message but was simply motivated to control the manner of dissemination of such a message in its stores.”

With regard to the retaliation claims, the Court found that plaintiffs’ retaliation theory, premised on the allegation that Whole Foods began enforcing the dress code to prohibit Black Lives Matter face masks in June 2020 and, from that point on, consistently enforced its dress code policy against the mask-wearing, failed to distinguish between alleged retaliatory discipline, caused by Whole Foods’ employees’ oppositional activity, from the company’s preexisting and ongoing discipline of employees for wearing Black Lives Matter masks. In other words, continuing discipline of an employee for repeated violations of the dress code is not evidence that Whole Foods had a retaliatory motive. Thus, the Court held that plaintiffs failed to allege the necessary causal relationship between Whole Foods’ continuing enforcement of the dress code policy and the employees’ protest of that enforcement.

Notably, the Court clarified that its decision does not foreclose a claim alleging that Whole Foods prohibited workplace speech as a pretext for discriminating against individual employees because of their race. Whether these plaintiffs or others down the road advance that theory remains to be seen.