Class Action Alleges Whole Foods Employees Subject to Discrimination, Retaliation for Wearing Black Lives Matter Masks [UPDATE]
Last Updated on February 11, 2021
Frith et al. v. Whole Foods Market, Inc.
Filed: July 20, 2020 ◆§ 1:20-cv-11358
A class action claims Whole Foods has disciplined and retaliated against employees who've worn Black Lives Matter masks despite publicly supporting the movement.
Case Updates
February 11, 2021 - Fired Worker’s Retaliation Claim Stands as Judge Tosses Rest of Lawsuit
The majority of the claims presented in the proposed class action detailed on this page have been dismissed, with only a fired Whole Foods worker’s retaliation allegation left standing.
In a 21-page order issued on February 5, United States District Judge Allison D. Burroughs granted Amazon and Whole Foods’ motion to dismiss the lawsuit almost in its entirety while allowing to proceed a claim from one employee who alleged she was fired after accumulating too many “points” as a result of wearing her Black Lives Matter mask.
According to Judge Burroughs, the defendants, at worst, selectively enforced a dress code to tamp down certain speech in the workplace, yet this does not amount to a violation of the Civil Rights Act as the plaintiffs alleged.
“It would, of course, be more honorable for Defendants to enforce their policies consistently and without regard for the messaging, particularly where the messaging selected for discipline conveys a basic truth,” the order reads. “Nevertheless, not all conduct that touches on race is actionable under Title VII [of the Civil Rights Act of 1964].”
An attorney for the plaintiffstold Law360 that she expects to appeal the judge’s decision.
Whole Foods Market, Inc. faces a proposed class action lawsuit after allegedly disciplining and retaliating against employees who wore Black Lives Matter masks as a means to protest racism and in a show of solidarity with Black workers.
More than a dozen Massachusetts, Washington, California and New Hampshire plaintiffs allege in the 17-page lawsuit that Whole Foods workers who’ve worn masks—required by the grocer to combat the spread of COVID-19—that display the Black Lives Matter message have been sent home without pay, threatened with termination and given disciplinary “points” when sent home, putting them at risk for getting fired.
According to the suit, Whole Foods’ conduct with regard to Black Lives Matter masks runs contrary to both the company’s previous stance on clothing displaying political messages and recent public support for the Black Lives Matter movement. The case says one plaintiff, a lead organizer among the proposed class of Whole Foods workers, was fired in July 2020 as a result of the discipline she received for wearing a Black Lives Matter mask and her organization of coworkers.
“Although Whole Foods and its parent company Amazon have professed to support the Black Lives Matter movement, Whole Foods began disciplining employees for wearing these masks,” the complaint says. “Although Whole Foods had not previously strictly enforced its dress code policy (and had not disciplined employees for wearing other messages, including political messages), the company began sending employees home without pay for wearing Black Lives Matter masks.”
The lawsuit alleges Whole Foods has violated Title VII of the Civil Rights Act of 1964 by “discriminating against Black employees for showing support for Black employees and protesting racism in the workplace by wearing Black Lives Matter masks.” Per the case, Whole Foods employees who have worn apparel bearing sports team logos, messages of support for LGBTQ+ coworkers and other slogans, have not been disciplined by the company.
Further, the plaintiffs allege Whole Foods’ “selective enforcement” of its dress code by way of disciplining employees who wear Black Lives Matter-supporting apparel constitutes unlawful discrimination on the basis of both race and employees’ affiliation with and advocacy for Black people.
The lawsuit looks to represent Whole Foods employees nationwide who have been “subject to Whole Foods’ discriminatory and retaliatory policy,” and asks the court for a preliminary and permanent injunction for Whole Foods to end its alleged policy of not allowing Black Lives Matter masks at work. Additionally, the plaintiffs seek the expungement of disciplinary records for employees who have faced discipline and back pay for those sent home without wages, among other relief.
ClassAction.org’s coverage of COVID-19 litigation can be found here and over on our Newswire.
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