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Whole Foods Workers Sue Over Black Lives Matter Mask Ban

July 20, 2020, 3:46 PM

Whole Foods Market Inc.'s policy of disciplining and firing workers for wearing Black Lives Matter face masks is discriminatory and irreparably harms workers who lose their jobs amid a global pandemic, a class action filed in Massachusetts federal court argues.

The workers are also asking the U.S. District Court for the District of Massachusetts for an order barring the grocery from enforcing the policy that forbids workers from wearing these masks or related apparel. A class action lawsuit, filed simultaneously with a motion for preliminary injunction, says that the company policy discriminates on the basis of race.

The lawsuit, filed Monday in Boston, alleges that several Whole Foods workers have already been disciplined or terminated for wearing Black Lives Matter face masks, which followed protests that sparked around the world after the death of George Floyd in Minneapolis and the demonstrations against police violence that followed.

Several companies, including Costco, Taco Bell, and Chik-fil-A have reportedly been prohibited from wearing such masks and attire, as well. Starbucks reversed such a policy after outcry.

“The actions of Whole Foods against its employees are not only illegal but shameful”, said Boston-based attorney Shannon Liss-Riordan, who represents the workers. “These essential workers have been asked to put their health at risk during this pandemic, and they have done so. Whole Foods’ decision to selectively and arbitrarily enforce it’s ‘dress code’ to specifically suppress the message that Black Lives Matter paints a picture about what the company values, and that picture is not pretty.”

Whole Foods has a policy that prohibits employees from wearing apparel with visible slogans, messages, or advertising that aren’t company related. Yet the company hasn’t previously enforced its dress code policy for other causes, including sport teams names and logos, political messages, and support for LGBT issues, according to the preliminary injunction motion.

Disputed Claims

The lawsuit claims the company has been enforcing the policy against those who wear Black Lives Matter masks since June. The motion says these workers will continue to face harm if they are disciplined or fired during the Covid-19 pandemic if they wait for the lawsuit to make its way through federal court. The discipline has also included sending workers home without pay and accumulating disciplinary “points” that can lead to termination.

Whole Foods denied firing any of its employees for wearing Black Lives Matter masks or apparel, in a statement provided to Bloomberg Law. The grocery chain is a unit of Amazon.com Inc.

One of the lead organizers of the protests, Savannah Kinzer, was terminated on July 18 for being tagged with enough points for wearing a Black Lives Matter mask, the lawsuit alleges. The company denies Kinzer was fired for wearing the mask.

“Savannah Kinzer was separated from the company for repeatedly violating our Time & Attendance policy by not working her assigned shifts, reporting late for work multiple times in the past nine days and choosing to leave during her scheduled shifts,” according to the Whole Foods statement. “As an employer we must uphold our policies in an equitable and consistent manner. Savannah had full understanding of our policies and was given a number of opportunities to comply.”

The lawsuit names 14 employees at Whole Foods stores in Cambridge, Mass.; Bedford, N.H.; Berkeley, Calif.; and Seattle. Other plaintiffs are expected to join the action, and the attorneys note news report of the Whole Foods policy being enforced in North Carolina, Connecticut, Pennsylvania, and Michigan.

The employees also filed a complaint with the National Labor Relations Board, charging Whole Foods with interfering with their right to engage in concerted activity to improve the conditions of their workplace.

Causes of Action: Race discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act.

Relief: Declare the company’s policy of not allowing masks to be worn to be in violation of Title VII; Issue an injunction against the company preventing them from disciplining employees for wearing masks; expunge disciplinary records of those cited for violating the policy; award back pay to employees who were disciplined; reinstate plaintiff Savannah Kinzer; and attorneys’ fees.

Attorneys: Lichten & Liss-Riordan represents the workers. Attorneys haven’t yet entered an appearance for Whole Foods.

The case is Frith v. Whole Foods Market, Inc., D. Mass., 1:20-cv-11358, complaint and motion for preliminary injunction filed 7/20/20.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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