Whole Foods Policy Prohibits BLM Masks, Company Argues

UPDATE 2: 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.

UPDATE: On Aug. 11, 2020, Whole Foods employees fired back against the food chain’s attempt to squash their civil rights class action lawsuit.

Whole Foods Market Inc. says employees’ Black Lives Matter face masks violate the company’s dress code, which bars them from wearing clothing with slogans or messages while at work.

The company’s position was stated in response to a class action lawsuit accusing the company of violating Whole Foods employees’ civil rights by banning the BLM masks.

Whole Foods employees in Massachusetts, New Hampshire, California and Washington claim they were disciplined for wearing masks supporting the Black Lives Matter movement.

In its response filed in court Tuesday, the company cites what it calls the “long-standing” Whole Foods policy on employee clothing.

According to the Whole Foods policy, employees are required to wear shirts from Whole Foods family brands, vendors or “industry-related organizations.”

“Alternatively, employees may wear other shirts or tops ‘without any visible slogan, message, logo or advertising on them,’” the filing says. 

In light of the COVID-19 pandemic, Whole Foods implemented a policy requiring all employees to wear a safety face mask for their whole shift, the company says.

“The standard operating procedures require, as an extension of the Dress Code Policy, that if Team Members opt to bring their own face masks, the masks must adhere to the Dress Code Policy, including its prohibition on ‘slogans, logos, or messaging,’” the company maintains. 

Whole Foods argues that it must insist on adherence to the dress code because if it allows employees to show support for one cause, such as Black Lives Matter, it must also then allow messages such as “All Lives Matter” or “Blue Lives Matter,” which it says could be seen as offensive by some customers.

“If Plaintiffs succeed in expanding Title VII from an employment discrimination law into a platform for public speech about broader social issues, Whole Foods would be unable to block messages on clothing articulating widely divergent views, some of which could be offensive to other employees or customers,” the filing says.

However, Whole Foods says the plaintiffs’ “reliance on Title VII is wholly misplaced.”

The company points out the plaintiffs are not claiming employment decisions are being based on race, but are instead asking the Court to stop a “facially neutral dress code” from being enforced.

Title VII protects against racial discrimination, “but it does not guarantee a platform for socially-conscious speech on racial issues,” the company argues.

The company maintains the plaintiffs wore masks supporting BLM to work and were informed they were violating the Whole Foods policy on dress.

They were given the choice to either change into compliant masks or be disciplined if they refused, the company says; they were also given the choice to leave during their shift and be disciplined further for any attendance violations.

“Plaintiffs who wore BLM masks to multiple shifts and chose to end their shifts early, instead of changing into compliant masks, continued to receive disciplinary action, including the accumulation of attendance violations,” the company says.

One employee was fired due to their absences and a “no call/no show violation;” two others voluntarily resigned, Whole Foods said in its filing.

The company maintains the employees admit they violated Whole Foods policy and do not deny they were given the chance to change into compliant masks.

Whole Foods argues that the Court should dismiss the plaintiffs’ motion for several reasons, including that the requested injunction would not serve the public interest and that the plaintiffs are unable to show irreparable injury.

In order to bring a Title VII claim, Whole Foods’ filing states, the plaintiffs must file a “timely” charge with the Equal Employment Opportunity Commission (EEOC) and receive of a right-to-sue letter from the commission. 

Only some of the plaintiffs filed such a charge, and none of them received a right-to-sue letter, according to the filing.

The issue of permitting BLM masks constitutes an issue of speech in the workplace rather than creating a new protected class or activity under Title VII, the company argues. 

“The Supreme Court repeatedly has held that Title VII does not protect workplace speech about political issues like this,” and that private employers need to have a certain amount of control over employees’ words and actions in order to maintain “an efficient and productive work environment,” Whole Foods argues. 

“Accordingly, Plaintiffs have not engaged in any actionable, protected activity by wearing BLM masks,” the company’s filing states.

Are you a Whole Foods employee? What do you think of the Whole Foods policy? Let us know in the comments.

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 U.S. District Court for the District of Massachusetts.

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