Last week, the U.S. Court of Appeals for the First Circuit in Boston dismissed the appeal of a group of Whole Foods employees who were disciplined for wearing face masks with the phrase “Black Lives Matter” at work. In Frith v. Whole Foods, the employees had claimed that Whole Foods' enforcement of a previously unenforced dress code policy against them constituted race-based employment discrimination. However, the First Circuit agreed with the district court, which previously had dismissed the employees’ suit for failure to state a legal claim.
The Whole Foods dress code policy at issue prohibited "employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related." But before the employees began wearing Black Lives Matter (“BLM”) masks at work, the policy was "generally unenforced." Employees, for example, were not disciplined by Whole Foods for wearing apparel with the logos of local sports teams, the National Rifle Association, LGBTQ+ Pride flags, the anarchist symbol, and the phrases concerning President Trump.
When the COVID-19 pandemic began in spring 2020, Whole Foods workers began wearing face masks, including face masks with the cartoon character SpongeBob SquarePants, images and names of vegetables, and prints. Around June 2020, following the death of George Floyd and demonstrations around the country protesting police violence and other discrimination against Blacks, many Black Whole Foods employees and their non-Black coworkers began wearing masks with the message Black Lives Matter at work. They claimed to do so "in a show of solidarity" with the BLM movement, "to protest racism and police violence against Blacks,” and to show support for Black employees.
At the time, Whole Foods publicly expressed support for the Black community and the BLM message. For example, after nationwide protests following Floyd's death, Whole Foods posted on its website "Racism has no place here" and "We support the black community and meaningful change in the world." However, when employees started wearing BLM face masks at work, Whole Foods began to enforce its previously unenforced dress code policy. Whole Foods sent employees home without pay for refusing to remove their masks and also assigned employees disciplinary points, which affected an employee's eligibility for raises and subjected them to possible future termination.
In upholding the district court’s dismissal of the employees’ lawsuit against Whole Foods, the First Circuit agreed that the factual allegations in the employees’ complaint were insufficient to take their claim “beyond the realm of pure conjecture." Importantly, the First Circuit noted that the employees had not alleged that once Whole Foods began enforcing its previously unenforced dress code policy around June 2020, the company applied the policy selectively. Nor did the employees claim that once Whole Foods began enforcing the policy, the company disciplined only the wearing of BLM masks and did not discipline other violations. The Court found this to be fatal to the race discrimination claims as a reasonable inference could be drawn that “Whole Foods was targeting the display by employees of the ‘Black Lives Matter’ message for non-race-based reasons rather than targeting the employees ‘because of’ their race.”
The First Circuit observed that there was an "obvious alternative explanation" to unlawful race discrimination for Whole Foods’ enforcement of the policy: the non-race-based motive of Whole Foods to control the manner of dissemination of such a non-company message in its stores. Moreover, the First Circuit acknowledged that Black Lives Matter was seen as a controversial message associated with a political movement advancing an array of policy proposals. Thus, Whole Foods' decision to begin enforcing its existing policy may be explained by the "obvious alternative explanation" that Whole Foods did not want to allow the mass expression of a controversial message by employees in their stores. The First Circuit declared that it could not infer racial discrimination based on factual allegations that were "just as much in line with" this non-discriminatory explanation for Whole Foods’ actions.
Takeaways for employers: Frith v. Whole Foods highlights the potential consequences for employers of having a dress code policy but not enforcing it. The employees who wanted to wear BLM masks at work perhaps would not have thought they could do so if Whole Foods had not previously allowed other employees to wear apparel/masks with the logos of local sports teams, the National Rifle Association, LGBTQ+ Pride flags, the anarchist symbol, cartoon characters, images and names of vegetables, and phrases concerning President Trump. The decision also shows how important it was that once Whole Foods decided to enforce its dress code, it did not do so selectively by only disciplining employees who wore BLM masks.