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The federal lawsuit filed by employees of Whole Foods Market, Inc. (“Whole Foods”) and Amazon.com, Inc. (“Amazon”) who were prohibited from wearing Black Lives Matter (“BLM”) attire, was dealt a significant blow when a Massachusetts federal judge dismissed the majority of the case finding all but one employee had failed to allege facts sufficient to survive a Rule 12(b)(6) challenge.
In the summer of 2020, numerous Whole Foods employees began wearing face masks and other attire with BLM messaging. In July, twenty-eight current and former employees asserted claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) after being told they could not wear the BLM attire per company dress code policy (the “Policy”) and were disciplined when they refused to abide by the Policy. Employees claimed that the Policy was selectively enforced in that LGBTQ and National Rifle Association messaging had previously been permitted and that such selective enforcement was discriminatory. They further contended that disciplinary measures taken for refusing to adhere to the Policy was retaliatory.
Judge Allison Burroughs found the employees did not adequately assert a Title VII violation because the facts alleged did not support a finding that employees were treated differently on the basis of their race as all employees, irrespective of their race, were prohibited from wearing attire with BLM messaging. Judge Burroughs noted “inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination and because Title VII does not protect free speech in a private workplace.” The associational discrimination claims similarly failed because there were no allegations supporting a finding that the employees had been “discriminated against on the basis of race, rather than on the basis of race-related messaging.”
With regard to retaliation, the claims of all but one employee who engaged in protected activity, including filing a charge with the EEOC prior to her termination, were dismissed. Judge Burroughs held that wearing BLM attire was not a protected activity as it was not done to oppose an unlawful employment practice, but rather to make a broader social statement. Absent a protected activity, any disciplinary action could not be unlawful retaliation. In reaching her decision, Judge Burroughs pointedly remarked “Whole Foods employees that are not happy with the Policy can find someplace else to work, express themselves outside the workplace, work with Whole Foods to change the Policy, and/or publicize the Policy in an effort to get consumers to spend their dollars elsewhere, but, under the facts alleged here, their redress does not lie with Title VII.”
Although the bulk of the claims were dismissed, this case nonetheless serves as a reminder to employers that selective enforcement of uniform policies can be risky and open the door to a lawsuit and potential liability. It also highlights the importance of ensuring dress code policies are facially neutral.