Whole Foods Employees Fight Back Against Store’s Attempt To Dismiss BLM Class Action

UPDATE: On Oct. 5, 2020, Whole Foods’ parent company Amazon.com said 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.

In the latest development of recent legal news, Whole Foods employees have fired back against the food chain’s attempt to squash their civil rights class action lawsuit.

In their initial complaint, employees claimed that Whole Foods inconsistently applied a dress code, preventing workers from wearing Black Lives Matter masks, but allowing other messaging technically against dress code to be displayed without issue. Now, they have asked the court for a preliminary injunction preventing Whole Foods from continuing the supposed retaliation against those employees who wear Black Lives Matter masks and challenge the employer’s actions.

Last week, Whole Foods filed an opposition to the employees’ claims, saying that these masks were indeed against dress code. The company also said that, if they allowed the Black Lives Matter masks to be worn, they would also have to allow messaging from a range of views, even those deemed offensive. The company also said that the Whole Foods employees had interpreted Title VII of the Civil Rights Act too broadly in their claims, so the Whole Foods civil rights class action lawsuit should be thrown out.

However, in their response, the employees say that the issues of dress code consistency and allowing either all or no messaging was really not why Whole Foods had prevented the Black Lives Matter masks to be worn by workers at the Whole Foods store. They argue that, though the company has asserted that their opposition to the masks is not related to race, it was actually an attempt to “selectively target, discipline, and terminate Black employees and those who associate with them in advocating for better treatment of Black employees.”

The employees say that, despite Whole Foods’ protestations, Title IIV does indeed forbid Whole Foods to retaliate against workers who oppose the “discriminatory enforcement of [the company’s] facially neutral dress code.” In making this statement, they point to instances in which they claim that employees have been disciplined for wearing the masks and further disciplined or even fired for challenging Whole Foods over this issue. 

Whole Foods had attempted to have the claims thrown out, saying that racial discrimination could not be at issue because the company had reprimanded workers of multiple races over wearing the masks.

However, the Whole Foods employees say that this does not mean that the company did not commit discrimination, but rather, that the store committed multiple instances of discrimination.

In making this point, the employees refer to Bostock v. Clayton County Georgia, a 2020 case in which the Supreme Court stated that “when an employer fires a man and a woman because of sex, ‘instead of avoiding Title VII exposure, th[e] employer doubles it.’” According to the workers, Whole Foods has exposed itself twice. 

The Whole Foods employees then dissect their employer’s supposed attempts to eliminate race from the discussion and instead reduce the discussion to a “naked policy argument” around dress code. Though the employer says that allowing the Black Lives Matter slogan to be worn, this means that all other messaging would have to be allowed, the employees say that this is immaterial. 

They express that “the court is not being asked to decide where the line is to be drawn,” precisely because Whole Foods has already violated its own dress code, allowing workers to wear plenty of other messaging but punishing workers for wearing Black Lives Matter messaging. 

The workers cover their bases, saying that if the argument had to come down to where a line would be drawn, Whole Foods’ argument would still fail. The employees note that Black Lives Matter is not a political statement, as determined by the federal government, and is permitted to be worn by federal employees, whereas “Make America Great Again,” for example, is deemed political and is therefore prohibited.

In arguing for the dismissal of the Whole Foods store dress code class action lawsuit, the employer noted that all the employees who were found in violation of the dress code by wearing a Black Lives Matter mask were given the opportunity to change into a dress code-complaint mask or face consequences. However, employees said that this was still not enough.

Have you worked at a place of employment with a dress code? Was the dress code strictly enforced? Share your experiences in the comments below.

The plaintiffs are represented by Shannon Liss-Riordan and Anastasia Doherty 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., Case No. 1:20-cv-11358-ADB, in the U.S. District Court for the District of Massachusetts.

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