It was not that long ago when most workers who were working in person wore masks or other face coverings as a safety precaution. Masks come in many variations – a single color, patterned, or even descriptive, with slogans, logos, and other messages and images.
Whole Foods’ dress code “prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.” Prior to summer 2020, Whole Foods did not enforce the policy. Employees, for example, had not been disciplined for wearing apparel supporting sports teams, the NRA, LGTBQ+ pride, and the like. When mask use was prevalent during the pandemic, workers wore masks containing images of cartoon characters, vegetables, and other prints. Other company employees wore masks containing the message “Black Lives Matter.”
In June 2020, Whole Foods sent a group of employees home without pay and disciplined employees for wearing face masks that violated company policy. The employees involved in a recent decision were disciplined for wearing masks bearing the phrase “Black Lives Matter.” The employees filed suit under Title VII of the Civil Rights Act of 1964, alleging that the company’s actions amounted to race discrimination. A district court dismissed the lawsuit and the First Circuit Court of Appeals has now affirmed that dismissal. Frith v. Whole Foods, No. 21-1171 (1st Cir. June 28, 2022).
The employees alleged that it wasn’t until after they started wearing “Black Lives Matter” masks that Whole Foods started to enforce the dress code policy. Employees were sent home without pay for refusing to remove their masks and were given “disciplinary points” that could impact wage increases and lead to termination. The Black Lives Matter masks were intended to show solidarity with the Black Lives Matter movement, to protest racism and police violence, and “demand . . . better treatment of Black employees in the work place.”
The district court granted the defendants’ motion to dismiss (Amazon was also a defendant) reasoning that the plaintiffs “have not alleged that [d]efendants would have treated any individual plaintiff differently if that plaintiff were of a different race. To the contrary, their allegations demonstrate that [d]efendants treated all employees wearing [Black Lives Matter] attire equally, regardless of race.” (alterations in original).
The appellate court framed the discrimination claims as whether Whole Foods “(1) discriminated against Black employees based on their race; (2) discriminated against employees based on their advocacy for their Black coworkers; and (3) discriminated against employees based on their association with their Black coworkers.” The First Circuit looked to the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), in which the Court wrote regarding sex discrimination: “[i]f the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.”
The court concluded that Bostock foreclosed the plaintiff’s “advocacy” theory of liability under Title VII. As to the race discrimination and associational discrimination claims, the court said the claims were technically viable, but for the plaintiff’s failure to allege sufficient facts of race discrimination. The court acknowledged that there could be a viable race discrimination claim even if Black and non-Black employees were disciplined if the discipline was motivated by race.
The issue with the complaint was that the plaintiffs did not allege the Whole Foods selectively enforced its policy once it began to enforce the dress code in June 2020. The plaintiffs “have not alleged, for example, that once Whole Foods began enforcing the policy, the company disciplined only the wearing of Black Lives Matter apparel and did not discipline other violations.” Did the company, for example, discipline others under the policy for wearing apparel with logos other than those supporting Black Lives Matter? The timing of Whole Foods’ decision to enforce the dress code was not in the court’s view sufficient to withstand dismissal. While the court was skeptical of Whole Foods’ timing – starting to enforce the dress code after the apparel first appeared – this timing alone did “not take appellants’ claims across the plausibility threshold.” The timing of the company’s decision “may be explained by the ‘obvious alternative explanation’ that Whole Foods did not want to allow the mass expression of a controversial message by employees in their stores.”
The plaintiffs therefore did not plead sufficient factual allegations regarding Whole Foods decision and the court did not “infer racial discrimination based on factual allegations that are ‘just as much in line with’ the non-discriminatory explanation.” The decision does not mean that banning masks supportive of Black Lives Matter or disciplining employees for wearing such masks is not or cannot be race discrimination. In this particular instance, however, the plaintiffs did not allege with sufficient particularity that race motivated the company’s decision.