Whole Foods employees who were disciplined in and around June 2020 for wearing Black Lives Matter masks cannot proceed with their discrimination complaint, according to a recent 3-0 decision issued by the First Circuit Court of Appeals.

The employees represented a putative class of Whole Foods and Amazon employees who were sent home without pay or otherwise disciplined for wearing face masks with the phrase Black Lives Matter.

They alleged, “The conduct of Whole Foods in selectively enforcing its dress code policy to ban employees from wearing Black Lives Matter masks and related apparel … constitutes unlawful discrimination based on race, because the policy has both adversely affected Black employees and it has singled out for disfavored treatment advocacy and expression of support for Black employees, by both Black employees and their non-Black coworkers who have associated with them and shown support for them through wearing, or attempting to wear, the Black Lives Matter masks at work.”

The Whole Foods dress code policy, “prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.”

The employees claimed that prior to the events at issue, the policy was “generally unenforced,” and “that employees were not disciplined for wearing apparel with the logos of local sports teams, the National Rifle Association, LGBTQ+ Pride flags, the anarchist symbol, and the phrase ‘Lock Him Up’ (ostensibly a reference to President Trump).”

The employees alleged that at the onset of the coronavirus pandemic in spring 2020, workers wore face masks to include images of SpongeBob SquarePants, names of vegetables, and prints. Around June 2020, “[f]ollowing the death of George Floyd and demonstrations … around the country protesting police violence and other discrimination against Blacks … many Black Whole Foods employees and their non-Black coworkers began wearing masks with the message Black Lives Matter.”

The employees claimed they wore the masks to support the BLM movement and to protest racism and police violence.

The employees alleged that only after they began to wear the BLM masks did Whole Foods begin to enforce its previously unenforced dress code policy, and that this amounted to race discrimination against the Black and non-Black employees who were impacted.

Since both Black and non-Black employees were disciplined, the court accepted that the employees raised a viable cause of action for “associational” discrimination, but refused to extend Title VII to include “advocacy” discrimination, as had been done in another circuit court.

The court nevertheless dismissed the case because Whole Foods demonstrated that it began to enforce its previously unenforced dress code policy around June 2020, and applied that enforcement consistently. The court noted the claims were less about “selective enforcement” and more about “suspicious timing.”

The court held, “At that time, the coronavirus pandemic had created the conditions for employees to easily and in a highly visible fashion display non-company messages at work. It is logical that Whole Foods would have a different perspective on enforcing its dress code policy in the era of employee mask wearing.”

The court added, “rightly or wrongly, Black Lives Matter was seen as a controversial message associated with a political movement advancing an array of policy proposals. Thus, the timing of Whole Foods’ decision to begin enforcing its existing policy may be explained by the ‘obvious alternative explanation’ that Whole Foods did not want to allow the mass expression of a controversial message by employees in their stores.”

The court recognized that a company’s effort to prohibit a mass display of a controversial message in its stores by employees could raise free speech concerns, but noted that Whole Foods is a private employer and therefore the employees could not raise First Amendment claims.

The retaliation claims also failed because Whole Foods planned the course of conduct before employees continued to wear the BLM masks. The Court noted that “employers are not required to “suspend previously planned [conduct] upon discovering that” employees have engaged in oppositional, protected conduct.

Employers are wise to implement only those policies they plan to enforce consistently. When employers permit small and seemingly innocent violations of its policies it inviting other messages that might create claims of discriminatory treatment.

The court noted that it was not dismissing the relevance or importance of the racial justice movement, but simply ruling on the legal conclusion that the employer’s action did not violate Title VII of the Civil Rights Act.

The employees have also filed a claim with the National Labor Relations Board alleging violations of the National Labor Relations Act. That matter is pending before the Board. Employees who engage in conduct that is for the mutual aid and protection of employees may have rights under the National Labor Relations Act. Under the current administration these rights are being read broadly to protect employees.