No Violation of Title VII in Discipline for Black Lives Matter Masks

The U.S. Court of Appeals for the First Circuit found that Whole Foods did not engage in race discrimination when it disciplined employees for wearing Black Lives Matter masks at work, since there was a plausible non-discriminatory reason for its actions – to prevent the mass display of a controversial message in its stores.

In Frith v. Whole Foods Market, Inc., the Company had a dress code policy that “prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.” This policy was generally unenforced, however. In the wake of the protests following George Floyd’s death, many employees – both Black and non-Black – began wearing “Black Lives Matter” masks. The Company began to enforce its dress code policy – those who refused to remove their masks were sent home without pay and given disciplinary points (which impact eligibility for raises and can lead to termination). The employees sued for racial discrimination under Title VII.

Under Title VII (and other discrimination laws), disparate treatment may exist when a facially neutral policy (such as a dress code policy) is applied in a manner that is intended to discriminate. However, the First Circuit rejected the employees’ disparate treatment claim, noting that the law requires the action to be taken “because of” the employees’ race (or association with members of that race, which the First Circuit recognized for the first time in this case, joining several sister Circuits in doing so). The First Circuit noted that, although the timing of the commencement of the enforcement may have been suspicious, there was no evidence that the Company enforced the policy selectively (i.e. only against BLM masks but not others that violated the policy) once it began enforcement. Moreover, the Company articulated a non-race-based reason for targeting the display of the BLM message – that it did not want to allow the mass expression of a controversial message by employees in their stores.

Obviously, decisions to ban certain messaging in the workplace can be fraught. While this decision was supportive of the employer’s authority in this matter, there have been other significant consequences. Whole Foods was the target of widespread media attention – much of it negative – as a result of this decision, and it is currently defending a related matter before the employee-friendly National Labor Relations Board, which could find a violation of the National Labor Relations Act.