Court Holds Whole Foods’ Decision to Ban BLM Masks is Not Unlawful
A Federal Court in Massachusetts recently held that disciplining employees who wear Black Lives Matter (BLM) face masks to work does not violate Title VII of the Civil Rights Act of 1964 (Title VII).FN1
Whole Foods employees sued for discrimination when the company sent home, docked the pay, and terminated the employment of some employees who wore BLM face masks, citing the company’s dress code banning "visible slogans, messages, logos or advertising" unrelated to the company. However, the court found that, at worst, the company’s actions consisted of “selectively enforcing a dress code to suppress certain speech in the workplace,” but was not conduct made unlawful by Title VII. Noting that the First Amendment right to freedom of speech does not generally extend to the private workplace, the court held that "Title VII prohibits discrimination against a person because of race. It does not protect one's right to associate with a given social cause, even a race-related one, in the workplace." The court found that the employees did not allege that Whole Foods would have treated any employee plaintiff differently if that plaintiff were of a different race.
Takeaway
Although the court opined that it would be “more honorable” for Whole Foods to enforce their policies consistently and without regard for the messaging, ultimately this particular court found that the company’s enforcement of its dress code policy was not unlawful. However, employers should continue to cautiously enforce dress code policies to ensure that they do not discriminate against employees based on federally or state protected statuses. Please contact Campbell Litigation, P.C. for questions regarding the enforcement of dress code policies in the workplace.
FN1 - Frith et al. v. Whole Foods Market Inc. et al., Case No. 1:20-cv-11358 (D. Mass).