BLM Masks Suit Fails in 1st Circuit, but Employers Should Consistently Enforce Policies

Employment Law


The First U.S. Circuit Court of Appeals ruled that a group of grocery store workers cannot move forward with their claims of race-based discrimination and retaliation based on being disciplined for wearing face masks with the message “Black Lives Matter.”

Whole Foods employees at stores in California, Georgia, Indiana, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Virginia and Washington filed suit against their employer, alleging violations of Title VII.

The Whole Foods dress code policy “prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.” The policy was generally unenforced until 2020.

With the onset of the coronavirus pandemic, workers at Whole Foods began wearing face masks. Around June 2020, following the death of George Floyd and demonstrations protesting police violence and racial discrimination, Whole Foods employees began wearing masks with the message “Black Lives Matter.”

Whole Foods began to enforce the dress code policy, sent employees home without pay for refusing to remove their masks, and assigned them disciplinary points (which affect a worker’s eligibility for raises and can accrue to result in termination).

The affected employees filed suit in Massachusetts federal court asserting racial discrimination and retaliation. Whole Foods moved to dismiss, and the district court granted the motion.

A panel of the First Circuit affirmed.

The court found the employees’ allegations that the company discriminated against Black employees based on their race and non-Black employees based on their association with their Black coworkers was “technically viable,” but determined that the plaintiffs’ allegations were factually insufficient. Importantly, the court pointed out that no allegations were made that Whole Foods applied the dress code policy selectively—just that it began enforcing it in mid-2020.

“Appellants’ discrimination claims … are less about ‘selective enforcement’ and more about suspicious timing,” the panel wrote. “But these facts alone simply do not take appellants’ claims across the plausibility threshold. Rather, these facts, even considered in the light most favorable to appellants, support an ‘obvious alternative explanation’—that Whole Foods was targeting the display by employees of the ‘Black Lives Matter’ message for non-race-based reasons rather than targeting the employees ‘because of’ their race.”

The employees’ allegations “simply do not support a plausible inference that Whole Foods’ prohibition on employees’ displaying the Black Lives Matter message in their stores was a pretext for racially discriminating against the individual employees,” the panel concluded.

The retaliation claim failed because “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,” the court wrote. “Appellants thus fail to allege the necessary causal relationship between Whole Foods’ continuing enforcement of the dress code policy and their wearing of the masks to protest that enforcement.”

The panel affirmed dismissal of the employees’ lawsuit.

To read the opinion in Frith v. Whole Foods Market, Inc., click here.

Why it matters: The First Circuit decision provides a valuable reminder to employers that inconsistent enforcement of dress codes may create exposure for discrimination and retaliation claims.

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