Whole Foods Workers Tell 1st Cir. BLM Masks Covered by Bias Law

Whole Foods Market Inc. and Amazon.com Inc. violated federal anti-bias law when they invoked a rarely observed rule, ordered employees to stop wearing face masks or other attire bearing Black Lives Matter messaging, and punished those who refused to comply, a group of workers told the First Circuit.

They began wearing masks and other attire on the job to show solidarity with and support for their Black co-workers in the wake of the May 25 killing of George Floyd in Minneapolis as they continued to work in-person through the Covid-19 pandemic, 28 Whole Foods workers and one Amazon Prime employee said Wednesday in seeking to revive their July 20 class lawsuit.

A lower court mistakenly dismissed the bulk of their claims February 5, finding their actions weren’t protected from discrimination or retaliation under Title VII of the 1964 Civil Rights Act, the workers said in the opening brief on appeal to the U.S. Court of Appeals for the First Circuit.

Whole Foods’ and Amazon’s selective dress-code enforcement against them violated Title VII because the law protects employees for associating with and supporting other employees who are members of a protected class, according to the brief. Race is a protected trait that Title VII shields from workplace bias, the brief said.

Title VII likewise protects employees from discrimination for advocating on behalf of protected class members, the workers said. Their wearing clothing with the BLM insignia was meant to advocate for better treatment of Black employees, they said.

That the 28 Whole Foods workers suing and the other employees they seek to represent in the suit are part of “a racially diverse coalition” doesn’t undercut the plausibility of their associational and race discrimination claims, the brief said.

“Amazon stood behind Whole Foods” as it, too, began requiring employees to adhere to the dress code, in essence “effectuating the same ban on BLM masks,” the workers told the First Circuit.

The U.S. District Court for the District of Massachusetts dismissed their discrimination claims, in part, after finding the ban on BLM attire was intended to suppress certain speech and that Title VII provisions governing private employers don’t protect free speech.

But the Black Lives Matter movement isn’t political, the workers said.

“Rather, BLM is a factual statement of fundamental human rights, that implicates every term, condition, and privilege of employment, because it raises the issue of racial injustice,” they said.

Opposing Whole Foods enforcement of its dress code to ban BLM attire after the company had tolerated other dress code violations that showed support for other causes, including LGBTQ+ co-workers, was opposition to race discrimination and thus the sort of activity Title VII protects from job retaliation, the workers said.

Such opposition doesn’t need to be written or verbal communications to be protected by Title VII, they said.

They also engaged in Title VII-protected activity by organizing boycotts and protests at Whole Foods locations, asking the company to release its demographic hiring and promotion data, and seeking the removal of armed guards from its stores, which “made Black employees uncomfortable,” the workers said.

Lichten & Liss-Riordan PC represents the workers. Morgan, Lewis & Bockius LLP represents Whole Foods and Amazon.

The case is Frith v. Whole Foods Mkt., Inc., 1st Cir., No. 21-01171, opening brief 4/28/21.