In February 2021, we wrote about Kinzer, et al. v. Whole Foods Market, Inc., a case pending in Massachusetts federal court in which multiple employees alleged that they had been terminated by Whole Foods for wearing Black Lives Matter masks and attire. Initially, the court dismissed the plaintiffs’ Title VII race discrimination claims but allowed a single retaliation claim to proceed into discovery.

On January 23, 2023, the court rejected the remaining retaliation claim in an order granting Whole Foods’ Motion for Summary Judgment. Whole Foods presented evidence that it terminated the plaintiffs for repeatedly violating its attendance and dress code policy which prohibited the display of slogans or messages that were not branded with the company’s logo. The court concluded that the plaintiffs’ evidence did not support a finding of pretext. The court reasoned that “[t]he record, at most, reflects a series of arguably ill-advised business decisions by Whole Foods in light of Plaintiffs’ dress code violations and the message they sought to display, but it is not one from which a jury could conclude that Whole Foods’ legitimate reasons for firing them were ‘shams’ concocted to punish them for protesting its strict enforcement of the dress code.”

The ruling offers some important lessons for employers. First, neutral dress code and attendance policies may be enforced against employees even in the most challenging social circumstances. Second, courts will consider the context in which a decision was made when assessing claims on summary judgment. Here, the court considered the impact of the COVID-19 pandemic on the company’s operations and enforcement of its policy. Finally, litigation is a protracted affair. This case was filed in July 2020, the motion to dismiss was partially granted in February 2021, and the summary judgment was granted in January 2023.

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