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Whole Foods, Workers Debate Whether BLM Mask Ban About Job Bias

Sept. 15, 2021, 6:46 PM

Whole Foods Market Inc. and Amazon.com Inc. violated federal anti-bias law when they punished workers for wearing Black Lives Matter masks because it denied their rights to associate with and support Black colleagues, a group of employees told the First Circuit on Wednesday.

The companies also retaliated against the workers for opposing what they reasonably believed was workplace race discrimination, particularly after they “doubled down” with their mask wearing after the companies’ initial crackdown, attorney Shannon E. Liss-Riordan said.

BLM masks don’t protest workplace practices, they just reflect a social message, attorney Michael L. Banks said for Whole Foods and Amazon. Such messaging “isn’t implicated by Title VII” of the 1964 Civil Rights Act, the U.S.'s primary employment discrimination law, he said.

The proposed classlawsuitalleges that the workers started wearing BLM masks and other attire on the job to show solidarity with and support for Black co-workers following the killing of George Floyd. Whole Foods’ and Amazon’s dress code is rarely invoked and was selectively enforced against them in violation of Title VII, the suit said.

Association Protected

Title VII also includes the right to be free from bias based on association with members of a protected class, Liss-Riordan said during oral argument before the U.S. Court of Appeals for the First Circuit and in the workers’ pre-argument briefing. Liss-Riordan is with Lichten & Liss-Riordan PC in Boston.

The workers’ argument is focused solely “on discrimination as a concept,” Banks said. They don’t mention or discuss the actual language of Title VII, which requires disparate treatment on the basis of race, he said.

As the judges’ questioning revealed, the lawsuit doesn’t allege the race of any of the mask wearers, so there is no evidence of discrimination based on race, Banks said. He is with Morgan, Lewis & Bockius LLP in Philadelphia.

The circuit has never recognized the associational discrimination theory under Title VII, the companies said in their brief. Even if it applies under Title VII, a familial or other very close association with a protected-class member is required, which the workers here didn’t and can’t allege, they said.

The companies support Black Lives Matter too as a social cause, but that’s not the same thing as alleging and opposing workplace bias, Banks said.

Whether the mask-wearing workers were a “diverse” group doesn’t matter, Liss-Riordan said. A male and female employee who complain about pay bias against women are both protected against discrimination and retaliation by Title VII. So are interracial couples who work for the same employer, she said.

The U.S. District Court for the District of Massachusetts dismissed the race bias allegations of all 28 lead plaintiffs on Feb. 5. Being disciplined for wearing BLM clothing doesn’t violate the anti-discrimination provisions of Title VII, which “does not protect free speech in a private workplace,” and the workers only alleged that were disciplined for wearing BLM clothing, the court said.

It also rejected the workers’ alternative theory of associational discrimination, but allowed one worker to go forward with a Title VII retaliation claim.

Too-Narrow Focus

The district court “viewed the case through far too narrow of a lens,” Liss-Riordan said. It also impermissibly drew factual conclusions in favor of the companies, she said.

These included that the workers’ mask wearing was only general advocacy against racism and not specifically meant to support their Black co-workers, she said. The lower court also misunderstood the timing and significance of the workers’ redoubling their protests after the companies told them they couldn’t wear BLM attire, Liss-Riordan said.

The three-judge panel consisted of Judges O. Rogeriee Thompson, Kermit V. Lipez, and Nancy Torresen, who was sitting by designation from the U.S. District Court for the District of Maine.

Thompson asked why wearing a BLM mask couldn’t be both general advocacy for a social cause and opposition to racial bias in the workplace. The workers took other actions in addition to wearing masks and attire, the judge said.

That included asking the companies for demographic pay and promotion data, and asked that security guards be removed from stores because they made Black employees uncomfortable, Liss-Riordan said.

Asking for pay data alone is protected activity under Title VII, she said. There is no need for the request to be tied to a specific allegation of job bias, she said. The key question is whether the workers reasonably believed their actions were opposition to job discrimination, which is a fact issue that warrants the case moving forward, Liss-Riordan said.

Thompson also posed the hypothetical of workers wearing KKK attire rather than BLM masks. Where does the employer have the right to draw the line on workers expressing a political statement? she said.

Banks said the workers wearing attire with messaging can be both general advocacy and specific opposition to workplace bias, but that’s not what happened here.

This case is the same as a worker standing in the doorway of their place of employment and advocating for a political candidate who supports a specific social cause or against social issues like climate change that are believed to have a discriminatory component or affect, he said.

The companies’ enforcement of its dress code against BLM mask wearers and not those who previously expressed other social messaging, such as opposition to LGBT bias, doesn’t violate Title VII because the companies could have banned that messaging as well, Banks said. Doing so wouldn’t have violated Title VII either unless the messaging was also directed specifically at workplace bias, he said.

The workers have the support of various advocacy groups, including the Massachusetts Employment Lawyers Association and Lawyers for Civil Rights.

The case is Frith v. Whole Foods Mkt., Inc., 1st Cir., No. 21-01171, oral argument 9/15/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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