Powerhouse Points: Massachusetts Lawsuit Over Black Lives Matter Masks Shows When it Comes to Employees’ Self- Expression, Consistency is Key

Written by Partner Jennifer M. Huelskamp for the Winter 2021 Edition of Powerhouse Points,  A Quarterly Litigation Update. Read the full issue here.

Powerhouse Points
  • Consistently-applied employment policies are key for employers to avoid this type of litigation.
  • A recent federal lawsuit in the District of Massachusetts examines the intersection of the Black Lives Matter movement and Title VII.
  • The court’s opinion, which dismissed most of the claims against the defendant–employer, analyzed whether the dress code policy at issue had a disparate impact on certain employees and was therefore discriminatory.
  • The court concluded that Title VII does not apply to free speech in a private workplace.
The Court’s Decision
In a recent decision in the US District Court for the District of Massachusetts, Plaintiffs, consisting of a class of current and former employees of Defendant Whole Foods Market, Inc. (“Whole Foods”, owned by, Inc. (“Amazon”), collectively, “Defendants”) alleged that defendants violated Title VII of the Civil Rights Act of 1964 by discriminating and retaliating against employees for wearing Black Lives Matter (“BLM”) masks and other attire. Plaintiffs alleged that disciplining employees for wearing BLM masks constituted unlawful racial discrimination and that discipline of employees for opposing the policy constituted unlawful retaliation.
The lawsuit further alleged that Whole Foods maintained a company-wide dress code policy (the “Policy”), prohibiting employees from “wearing clothing with visible slogans, messages, logos, and/or advertising that were not Whole Foods-related.” Plaintiffs alleged the Policy was rarely enforced, that is until plaintiffs began wearing BLM masks and other attire in June 2020. “For instance, employees wore items with LGBTQ+ messaging, National Rifle Association messaging, the anarchist symbol, the phrase ‘Lock Him Up,’ and other non- Whole Foods messaging,” the court noted. Plaintiffs further alleged that “[e]ven in connection with masks specifically, Whole Foods has not strictly enforced the policy, permitting at least one employee to wear a SpongeBob SquarePants mask.”
Whole Foods denied the allegations and moved for dismissal, saying Plaintiffs failed to state a discrimination claim because they did not allege that Whole Foods “disciplined or discharged any employees because of their race or applied the Policy differently based on any employee’s race” and that Plaintiffs failed to state a retaliation claim because they “did not identify an actionable protected activity.”
In response, Plaintiffs stated that by selectively enforcing the Policy to target and suppress BLM messaging, “Whole Foods discriminated against Black employees, and other employees associating with and advocating for Black employees, in violation of Title VII and that Whole Foods retaliated against employees for continuing to wear BLM apparel and otherwise protesting the Policy, which constitutes protected activity.”
Whole Foods responded that Plaintiffs’ “failure to allege that Whole Foods took any particular action specifically because of the race of any particular employee [was] fatal to their discrimination claim” and that “protesting was directed at a broad social injustice, not Whole Foods’ enforcement of the Policy, and, therefore, was not a protected activity.”
Ultimately, the court dismissed all discrimination claims and all but one retaliation claim[1].  “Putting aside the wisdom or fairness of defendants’ decision to aggressively discipline employees for wearing BLM attire, particularly when defendants purportedly allowed employees to wear clothing with other messaging, inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination,” the court stated. “Title VII does not protect free speech in a private workplace.”
The court noted the plaintiffs came from a variety of racial backgrounds and did not allege that Whole Foods or Amazon treated Black employees who wore BLM masks any differently than non-Black employees who wore them and thus held there was no discrimination based on race. The court also rejected the “associational discrimination theory” the Plaintiffs attempted to use to “to bypass the plain language of Title VII.” This theory asserted that Whole Foods discriminated against Black employees and other workers associating with and advocating for Black employees in violation of Title VII, but the court rejected this, stating, “A Plaintiff advancing an associational discrimination claim . . . still must allege that they were discriminated against on the basis of race, rather than on the basis of race-related messaging.” The court illustrated the distinction by highlighting cases in which associational discrimination did occur, for example, in one case in which Plaintiffs were white women who alleged that they were discriminated against because they defended and supported their Black co-workers, who, themselves, were being subjected to race-based mistreatment (e.g., use of racial slurs, racial graffiti).
The court summed it up as follows, “because no Plaintiff alleges that he or she was discriminated against on account of his or her race or that he or she was discriminated against for advocating on behalf of a co-worker who had been subject to discrimination, Plaintiffs have failed to state a claim for discrimination under Title VII.” Likewise, most of the retaliation claims were dismissed because “the Amended Complaint d[id] not provide enough information to support the inference that each individual plaintiff wore a BLM mask in ‘opposition’ to perceived discrimination and was then disciplined for doing so.”
The employees plan to appeal the decision.
Key Takeaways and Policy Considerations
Employers should note that consistently applied policies are key in any workplace setting. This is the best practice for all employment policies, but especially in the enforcement of policies that implicate self-expression and free speech and in light of the tumultuous political climate the country now faces. Plaintiffs alleged that Whole Foods inconsistently disciplined employees who strayed from the Whole Foods-only related dress code policy. Employers are urged to consistently apply dress-code policies to avoid politically-charged litigation.
Even though the court held this policy did not directly violate Title VII, the issues it implicates walk a fine line that consistently-applied rules likely could have avoided. There are many considerations – business, legal, moral, ethical, workplace culture, etc. – to balance when crafting employment policies and practices, but one thing remains clear: all employees must be treated the same in all aspects of employment.
The decision is Frith v. Whole Foods Market Inc., D. Mass., No. 20-cv-11358.
If you have any questions about the decision or any aspect of their articles on the subject, please contact Jennifer M. Huelskamp ([email protected]). 

[1] The court did permit one of the plaintiff’s retaliation claims to proceed, noting that she was terminated after filing charges with the Equal Employment Opportunity Commission and the National Labor Relations Board.