Whole Foods recently scored a victory in its fight to defend its dress code prohibition on non-Whole Foods brands and logos. The United States District Court for the District of Massachusetts, (“the Court”) granted Whole Foods’ motion for summary judgment on a Title VII of the Civil Rights Act of 1964 (“Title VII”) retaliation claim by several former employees who alleged that Whole Foods’ application of the policy to Black Lives Matter (“BLM”) masks amounted to retaliation against the employees for wearing the masks and for opposing racism at work. Kinzer et al. v. Whole Foods Market Inc. et al., case number 1:20-cv-11358 (January 23, 2023).

This dismissal was the latest chapter in the ongoing, multi-faceted litigation against Whole Foods arising from its enforcement of its dress code and attendance policies during the COVID-19 pandemic. The dress code policy generally prohibits employees from wearing non-Whole Foods brands and logos. Employees who violated the policy, including the plaintiffs in this case, were sent home and received attendance “point” violations.

Across the country, several employees wore BLM face masks to work — some to express solidarity with the Black community and others to protest their own experiences with alleged racism at Whole Foods. Because the masks violated Whole Foods’ facially neutral policy, all plaintiff-employees were sent home, received attendance points, and were ultimately terminated.

In addition to filing suit under Title VII, the employees filed charges with the National Labor Relations Board (“NLRB”), alleging the policy unlawfully restrained “protected concerted” activity in violation of the National Labor Relations Act (“the Act”).

In July 2022, the Court dismissed the putative class claim for discrimination in violation of Title VII, holding that because the dress code policy was uniformly applied (to all races), the plaintiffs failed to adequately allege they were discriminated against in violation of Title VII. This decision was appealed and affirmed in Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022). Whole Foods moved for summary judgment on the remaining retaliation claim. The Court granted Whole Foods’ motion but clarified its decision was “not about the importance of the BLM message, the value of Plaintiffs’ advocacy in wearing the masks, the valor of their speaking out against what they perceived to be discrimination in their workplace, or the quality of Whole Foods’ decision-making.”

The Court held that Whole Foods produced legitimate non-retaliatory reasons for the progressive discipline and ultimate terminations (the dress code and attendance policies), and the plaintiffs could not prove these reasons were “ ‘shams’ concocted to punish them for” engaging in protected conduct.

While plaintiffs are out of luck with their Title VII claims, they have so far fared better at the NLRB. The Regional Office issued a complaint and the matter has already been tried and briefed before an administrative law judge. Given NLRB General Counsel Jennifer Abruzzo’s public statements and the NLRB majority’s current pro-employee proclivities, there is a good chance the NLRB will find a violation. Relatedly, other employers will likely soon find themselves targeted by the NLRB’s crackdown on neutral dress code policies, which the NLRB tends to regard as de facto bans on union apparel.

Given these multi-faceted “opportunities” for scrutiny, employers with neutral dress code policies are well advised to consult with counsel experienced in both employment and traditional labor law. Even though Whole Foods prevailed in federal court, the NLRB is demonstrating that “it is not over ‘til it’s over.”