Massachusetts Lawsuit Over Black Lives Matter Masks: When it Comes to Employees’ Self-Expression, Consistency is Key
By Jennifer Huelskamp, Freeborn & Peters LLP
In a recent federal case, Whole Foods employees alleged the grocer violated Title VII by discriminating against employees for wearing Black Lives Matter (BLM) masks. 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 alleged Whole Foods had a dress code policy prohibiting employees from “wearing clothing with visible slogans, messages, logos, and/or advertising that were not Whole Foods-related”. Plaintiffs said the policy was rarely enforced until plaintiffs began wearing BLM masks. “For instance, employees wore items with LGBTQ+ messaging ... and other non-Whole Foods messaging.”
Plaintiffs alleged that even the mask policy was not strictly enforced. Whole Foods denied the allegations and moved for dismissal, arguing plaintiffs failed to state a discrimination claim because they did not allege Whole Foods “disciplined or discharged any employees because of their race or applied the policy differently based on any employee’s race”.
Ultimately, the court dismissed all discrimination claims, reasoning, “[I]nconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination”. The court continued, “Title VII does not protect free speech in a private workplace”. The court noted “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”.
This decision cautions employers 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.
Jennifer HuelskampGGI member firm
Freeborn & Peters LLP
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Freeborn & Peters LLP is a full-service law firm in the US with international capabilities and offices in Illinois, New York, Virginia, Illinois and Florida. The firm serves clients across a broad range of sectors and targeted industries through its pioneer interdisciplinary approach.
Jennifer Huelskamp is a Partner in Freeborn’s Employment and Litigation Practice Groups, with a practice focused on employment litigation and counselling. She has significant experience representing clients in state and federal courts and in proceedings before government agencies.
Published: Employment Law Newsletter, No.10, Spring 2021 l Photo: SeanPavonePhoto - stock.adobe.com