The federal First Circuit Court of Appeals rejected an appeal by employees at multiple Whole Foods stores who were disciplined for wearing Black Lives Matter (BLM) face masks on the job amid widespread protests after the death of George Floyd in 2020.  The court found the employees’ claim was insufficient to make a claim of racial discrimination and retaliation, even though the employer had previously not enforced its dress code

The company’s dress code policy “prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.”  The policy generally went unenforced until June 2020, when the company prohibited the wearing of BLM masks and began to send workers home and issue disciplinary “points” to those who refused to remove the masks.

The plaintiffs in this case are of varied racial makeup, some Black and others white or other races.  The lower court granted the employer’s motion to dismiss on the basis that the company did not treat any employees differently because of race, and in fact it consistently enforced the policy against anyone who wore a BLM mask to work. The complaint alleged selective enforcement, but the court instead addressed it as a matter of “suspicious timing,” but found that it was logical for the employer to change its perspective on enforcement during the era of employee mask wearing.

The court also dismissed a claim of retaliation by the employees, finding that the employees’ wearing of the mask was to show solidarity for their Black coworkers and not to protest an unlawful employment practice.

The First Circuit reviewed the case “de novo,’ meaning that rather than reviewing for an erroneous decision by the lower court, it analyzed the claim on its merits.  It employed different reasoning to affirm the dismissal of the case by the lower court.

First, the court found that the claim by the employees was not based on their own races, which were not disclosed in the complaint, but that of association with or advocacy for Black coworkers and Black people in general.  Such a claim of “associational” discrimination is recognized under Title VII and therefore the claim of race discrimination is “technically viable.”

But the complaint lacked any factual basis to indicate that the employer’s stated reason was a pretext for associational discrimination. The employer’s stated reason for enforcing its dress code was to avoid the display of a potentially controversial message in its stores.  The court found this to be an “obvious alternative explanation” for the company’s actions.  The company had expressed its strong support for the Black community on its website and elsewhere and wished to retain control over communication on the subject.

Next, the First Circuit rejected the retaliation claim, finding that the enforcement of the dress code was ongoing prior to the time that employees wore the BLM masks to protest the employer’s policy. The employees failed to “allege the necessary causal relationship between Whole Foods’ continuing enforcement of the dress code policy and their wearing of the masks to protest that enforcement.”

The court notes that the prohibition of the BLM masks is within the rights of a private employer, as the First Amendment does not protect employee speech in that setting.  Private employers are free to adopt and enforce policies that limit employees’ expression while on the job., provided that they uniformly enforce such policies

This case it is a good reminder that consistent enforcement of policies is essential to avoid the appearance of favoring one group of employees or discriminating against another.

AIM members with questions about this or any other human resources issue may contact the AIM Employer Hotline at 1-800-470-6277.