Amazon Says Race Isn’t An Element In Whole Foods Racial Bias Class Action Lawsuit

Whole Foods’ parent company Amazon.com says a Massachusetts federal judge cannot consider the race of a Black plaintiff who alleges she was sent home from work for wearing a Black Lives Matter mask because the employee did not mention her race in her racial bias complaint.

The memo filed Oct. 5 by Amazon is the latest twist in an ongoing legal dispute between the grocer Whole Foods and its employees that concerns workers’ alleged rights to wear Black Lives Matter face masks while on the job. 

Twenty-six employees who are or had been Whole Foods employees at store locations in Massachusetts, New Hampshire, California, and Washington signed on as plaintiffs in the original racial bias class action lawsuit filed in July.

In their initial racial bias lawsuit, plaintiffs claimed that Whole Foods inconsistently applied a dress code that prevented workers from wearing Black Lives Matter masks but allowed other messaging technically against dress code to be displayed without issue.

Employees asked the court for a preliminary injunction preventing Whole Foods from continuing the alleged retaliation against those employees who wear Black Lives Matter masks and challenge the employer’s actions. 

In seeking to dismiss the racial bias complaint, Whole Foods and its owner, Amazon, argued in August that the employees violated the company dress code, which in light of the COVID-19 pandemic has required employees to wear face masks for their entire shift. 

The company said employees who wore Black Lives Matter masks were given the choice to either change into compliant masks or be disciplined if they refused; they were also given the choice to leave during their shift and be disciplined further for any attendance violations.

This week, lawyers for Amazon submitted an additional memo that specifically contests the arguments made in the amended racial bias complaint by one plaintiff, Alice Tisme, who claims the company discriminated against her in enforcing the dress code policy. 

Amazon argues that Tisme’s discrimination claim fails because her argument is “devoid of any allegations that Amazon enforced its dress code policy against Tisme because of her race” and therefore, U.S. District Judge Allison Burroughs cannot consider that fact when deciding the case against the retail giant. 

Tisme’s claim “is of no consequence because the Amended Complaint did not allege her race, and ‘[factual] matters outside the pleadings’ cannot be considered on a motion to dismiss,” Amazon contends. “Regardless, even if the Court were to consider Tisme’s race, there are no pled allegations that Amazon engaged in any conduct because Tisme is Black.”

Furthermore, the company argues that Tisme’s associational discrimination claim is invalid because those types of claims are only available to individuals of one race who are discriminated against because of their association with members of another race. Tisme does not identify the race of any employees in the amended complaint, according to the company.

The plaintiffs are represented by Shannon Liss-Riordan of Lichten & Liss-Riordan PC.

The Whole Foods Black Lives Matter Masks Class Action Lawsuit is Suverino Frith, et al. v. Whole Foods Market Inc. and Amazon.com Inc., Case No. 1:20-cv-11358-ADB, in the U.S. District Court for the District of Massachusetts..

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