The First Circuit recently dismissed a case against Whole Foods, allowing the company to ban employees from wearing face masks with the message “Black Lives Matter” in their stores. The case stemmed from Whole Foods’s decision to renew enforcement of a dormant dress policy after employees began to wear face masks with the message.
Whole Foods has long had a dress code policy on its books prohibiting employees from wearing clothing with visible, non-company slogans, messages, logos, or advertising. Before 2020, this dress policy was largely unenforced. Employees were not disciplined for wearing apparel with the logos of sports teams, the NRA, LGBTQ+ pride flags, and more. However, with the onset of the coronavirus pandemic employees started to wear face masks and with the rise in protests surrounding police violence, some employees began wearing face masks with the message “Black Lives Matter.” At this point, Whole Foods renewed enforcement of the dormant dress code policy and began disciplining employees who wore any apparel violating the policy – including employees wearing the Black Lives Matter facemasks. Employees violating the policy were sent home without pay and were assigned disciplinary points, which have the possibility of impacting eligibility for raises and possible termination.
In July of 2020, a group of employees sued Whole Foods for race-based and associational discrimination alleging that Whole Foods had selectively enforced its dress code policy.
According to the First Circuit, the group of employees failed to establish that once Whole Foods revived its policy and began reinforcement of it, it did so inconsistently or on the basis of a protected class. Instead, the First Circuit found that Whole Food uniformly enforced its dress code regardless of the message and, thus, did not violate antidiscrimination laws.
Bottom Line
For private employers, this case raises a few considerations to be made when implementing and enforcing similar policies. If employers have a similar policy on the books, but it has not been enforced, now is the time to review, revise if necessary, and begin uniform enforcement. Had Whole Foods consistently enforced its policy rather than have years of non-enforcement, only to revive the policy in a period of stark political polarization, this case likely would not have been brought. Second, any such policy should be enforced uniformly. The policy at issue here banned employees from wearing any clothing containing non-company related slogans, messages, and logos. Any means any. It is unclear how the court would have ruled had the Whole Foods policy targeted political speech specifically. The case was dismissed because Whole Foods enforced its policy against employees wearing sports team logos in the same way it enforced the policy against employees wearing Black Lives Matter masks. Any enforcement of a similar policy cannot specifically target one type of message if all non-company messages are banned.