When Employment and Traditional Labor Collide: Whole Foods Wins One in the Ongoing Legal Battle Concerning Black Lives Matter Masks


By Patrick Scully & Carissa Davis
Sherman & Howard

Whole Foods recently scored a victory in its fight to defend its dress code prohibition on non-Whole Foods brands and logos. On Jan. 23, the U.S. District Court for the District of Massachusetts granted Whole Foods’ motion for summary judgment on a Title VII of the Civil Rights Act of 1964 retaliation claim by several former employees who alleged that Whole Foods’ application of the policy to Black Lives Matter masks amounted to retaliation against the employees for wearing the masks and for opposing racism at work.

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 alleging the policy unlawfully restrained “protected concerted” activity in violation of the National Labor Relations 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. 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 related to 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 the 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. Other employers may find themselves targeted by the NLRB’s crackdown on neutral dress code policies, which the NLRB recently regarded 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’s not over ‘til it’s over.

Editor’s note: Law Week Colorado’s publisher and parent company Circuit Media has had a professional relationship with Patrick Scully in the past.   

– Sherman & Howard member Patrick Scully and associate Carissa Davis are both labor and employment attorneys practicing out of the firm’s Denver location.

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