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Whole Foods Workers Punished Over BLM Masks Lose Bias Claims (1)

Feb. 5, 2021, 9:45 PMUpdated: Feb. 5, 2021, 11:05 PM

Amazon.com Inc. and Whole Foods Market Inc. workers lack discrimination claims based on a work policy prohibiting them from wearing face masks or other attire bearing Black Lives Matter messaging because they acknowledge the rule applies regardless of a worker’s race, a Massachusetts federal judge ruled Friday.

The decision dismisses the race bias allegations of all 28 lead plaintiffs in the proposed class action under Title VII of the 1964 Civil Rights Act, 27 of whom work or worked for Whole Foods, an Amazon subsidiary. They and Alice Tisme, who is a Prime shopper at a Whole Foods in Cambridge, Mass., failed to state viable claims under Title VII because they only alleged they were disciplined for wearing BLM clothing, the court said.

All of the workers, except for one, also failed with their Title VII retaliation claims, the court said.

Being disciplined for wearing BLM clothing doesn’t describe a violation of job discrimination law because Title VII “does not protect free speech in a private workplace,” the U.S. District Court for the District of Massachusetts said. That was so even though the policy wasn’t always enforced with regard to LGBT and other messaging, the court said.

The lawsuit, filed in July, followed protests and demonstrations around the world sparked by the death of George Floyd in police custody in Minneapolis.

Judge Allison D. Burroughs was not convinced that the case raised race discrimination claims, even “assuming the truth of the allegations in the complaint.”

“Rather, 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,” she concluded.

Other companies, including Costco Wholesale Corp., Taco Bell, and Chick-fil-A, have also reportedly prohibited workers from wearing BLM masks and attire. Starbucks Corp. reversed its policy after an outcry.

Appeal Likely

The workers’ attorney, Shannon Liss-Riordan, said she expects they will appeal the decision and is disappointed at the “narrow” view the court took on race discrimination claims under Title VII.

“The court adopted a very narrow frame for analyzing race discrimination, which goes against the tide of caselaw recognizing the critical importance of eradicating race discrimination from worksites across our country,” Liss-Riordan said. “Whole Foods and Amazon’s decision to punish employees from expressing that Black Lives Matter, while allowing employees to express many other messages, is extremely troubling.”

Attorneys and media representatives for Amazon didn’t immediately respond to requests for comment on the ruling.

A Whole Foods spokesperson said in a statement,“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.”

Analogy to LGBT Ruling

The court further ruled that the race bias claims even fail under the rationale the U.S. Supreme Court recently adopted in finding that Title VII’s sex bias provision covers LGBT workers because the plaintiffs didn’t allege that Amazon or Whole Foods would have treated their BLM-mask wearing more favorably if they had been of a different race, the court said.

The nature of their underlying allegation is made clear by the class they proposed to represent, which included all employees of either company who were prohibited from or disciplined for wearing BLM messaging in the wake of Floyd’s killing, Burroughs said.

The workers also failed with their alternative theory of associational discrimination, the judge said.

Though apparently an open issue in the First Circuit, other circuits and lower courts within the circuit have recognized the viability of the association bias theory in the race discrimination context, Burroughs said. But such claims have typically involved workers who were allegedly discriminated against because of their relationship with a member of another race, she said.

That’s not what the workers here allege, she said. And they “cited no case where a court sanctioned a Title VII claim” based on discipline for wearing attire to advocate for a cause, the judge said.

Savannah Kinzer did state a viable retaliation claim because she alleged three possible Title VII-protected activities, Burroughs said.

Kinzer says before she was fired she led employee protests in opposition to Whole Foods’ enforcement of the policy, which she viewed to be discriminatory; wore a BLM mask in opposition to enforcement of the policy; and filed discrimination and retaliation charges with two federal agencies, the judge said.

BLM attire is worn to protest police brutality and nationwide racism. It isn’t the type of opposition to workplace discrimination that Title VII shields from employer, the court said.

Morgan, Lewis & Bockius LLP represents Whole Foods and Amazon.

The case is Frith v. Whole Foods Mkt., Inc., D. Mass., No. 1:20-cv-11358, 2/5/21.

(Updated with additional reporting and comment.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com