Whole Foods wins case that claimed retailer unlawfully fired employees who wore BLM masks

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Update:

• A federal judge in Massachusetts ruled Whole Foods did not violate the law when it fired employees who allege they were let go as retaliation for wearing masks with the phrase “Black Lives Matter.”
• A trio of former Whole Foods workers argued that the timing of their dismissals demonstrated pretext and that they had faced a harsher punishment for wearing the masks. 
• The judge determined Whole Foods’ reasoning for terminating the employees was legal, uniform and didn’t violate Title VII. 
• Whole Foods has a dress code that bars employees from wearing anything bearing a slogan or message that is not branded with the company itself. 

Whole Foods BLM masks class action lawsuit overview:

• Why: The plaintiffs argue that they were fired for wearing Black Lives Matter face masks at work.
• Who: Three Whole Foods employees sued their former employer.
• Where: The class action lawsuit was filed in Massachusetts federal court.

(Jan. 18, 2022)

Whole Foods Market has asked a federal judge to dismiss a class action lawsuit filed by three former employees who allege they were discriminatorily fired for wearing Black Lives Matter (BLM) face masks while at work.

In its motion, Whole Foods argued that the plaintiffs’ claims are “factually and legally baseless.” For one, the grocery giant maintains that the class action lawsuit is “completely devoid of any evidence whatsoever” that connects the employees’ terminations to their masks. The company also claims that its dress code policy in question was “enforced in a nondiscriminatory manner against workers of all races.”

Further, the company argues that the three plaintiffs were employed not by Whole Foods Market but by subsidiaries of Whole Foods Market. The company maintains that the employees have no evidence to prove that Whole Foods Market had any “meaningful control” over their employment and therefore the company should not be held liable. 

The class action, filed by Haley Evans, Savannah Kinzer and Christopher Michno, alleges that Whole Foods “selectively enforced the dress code policy against individuals wearing BLM facemasks.” This, they argue, amounts to unlawful discrimination and retaliation and violates their civil rights. 

This is the second amended complaint in this case after claims of discrimination and retaliation were dismissed by the court in February 2021. Kinzer was allowed to proceed with a separate, fact-specific retaliation claim. 

Employees’ Termination Stems From Valid Violations, Says Whole Foods

Whole Foods maintains that the three employees were fired due to their noncompliance with the company’s “longstanding” dress code policy that prohibits workers from wearing “clothing with visible slogans, messages, logos or advertising unrelated to Whole Foods or its vendors” regardless of whether Whole Foods supports the cause being represented. 

Tens of thousands of employees complied with Whole Foods’ request to remove their BLM facemasks in the second half of 2020, according to the company’s motion. In the days and weeks that followed, the three plaintiffs did not stop wearing their BLM facemasks. In Evans’ and Michno’s cases, this was “to the point of exhausting the progressive discipline process, leaving Whole Foods no choice but to terminate their employment.” In Kinzer’s case, Whole Foods claims she was terminated for repeated violations of the company’s attendance policy, only one of which was related to her BLM mask. 

Whole Foods also maintains that the employees “admit to engaging in the conduct giving rise to each and every policy violation.”

In their complaint, the plaintiffs must first prove that they “undertook protected conduct,” which is protesting or opposing statutorily prohibited discrimination. Then they must prove they “suffered an adverse employment action” and that the two are “causally linked.” The plaintiffs fail in these regards, especially since the employees did not “engage in protected activity by wearing BLM facemasks in the workplace,” Whole Foods argues.

Have you faced a similar situation at your workplace? Share your thoughts below!

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

The Whole Foods BLM Masks Class Action Lawsuit is Evans v. Whole Foods Market, Inc., Case No. 1:20-cv-11358-ADB, in the US District Court for the District of Massachusetts. 

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