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Whole Foods is “attempt[ing] to strip from this case the obvious racial implications of having selectively banned ‘Black Lives Matter’ (‘BLM’) messaging from its workplace.” That is what a group of nearly 30 current and former Whole Foods employees assert in a new filing in the lawsuit that they initiated against the Amazon-owned grocery chain in a Massachusetts federal court in July for allegedly “disciplining employees” in stores across the U.S. “for wearing Black Lives Matter masks” during their shifts, while enabling other employees to wear garments and accessories that bear non-company-related messages in the past. 

In the motion to dismiss that it filed last month, Whole Foods argued that the plaintiffs’ racial discrimination and retaliation case should be tossed out, as they did not establish that it applied its dress code policy – which “nominally prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related” – in a manner that violates Title VII of the Civil Rights Act of 1964, the U.S.federal law that protects employees against discrimination based on certain specified characteristics, such as race, national origin, sex, and religion.

Counsel for Whole Foods asserted that, among other things, the plaintiffs “fail to state a cognizable claim for relief” because Title VII “does not provide a platform for socially-conscious speech,” such as Black Lives Matter messaging. Instead, what the statute does prohibit is “discrimination against an employee on account of his or her race,” which is not what happened and “is not what the plaintiffs are alleging,” per Whole Foods. 

With that in mind, the plaintiffs acknowledge, according to Whole Foods, that its “dress code was uniformly enforced [against] both Black and non-Black employees” since Whole Foods did not make “any employment decisions based on the race of the employee wearing any particular clothing item,” presumably given that white employees were disciplined for wearing Black Lives Matter masks. 

Given that it enforced the policy against BLM mask-wearing employees regardless of race, the grocery giant asserts that the plaintiffs have failed to show that it has engaged in racial discrimination in violation of Title VII, and “thus, their discrimination claim fails as a matter of law.” 

In a response of their own dated August 28, the plaintiffs call foul on Whole Foods’ “attempt [to] reframe the case” in its motion to dismiss “as focused on whether maintaining a facially neutral dress code policy runs afoul of Title VII.” In reality, the plaintiffs argue that they “have not alleged that Whole Foods’ dress code on its face violates Title VII; rather, [they] have alleged that Whole Foods has selectively enforced the dress code to target and suppress BLM messaging in the workplace, thereby discriminating against its Black employees and employees of other races who associate with them and advocate for them, [which] is in violation of Title VII.” 

In other words, the plaintiffs allege that Whole Foods is “distinguishing between [various] dress-code violations” and only targeting those that are “based on race.” For example, they assert that “Whole Foods has distinguished between shows of support for LGBTQ+ employees, which it has deemed acceptable [in the past] even when such demonstrations violate the dress code, and shows of support for Black employees, which it has deemed worthy of progressive disciplinary action.”  

“This race-based selective enforcement of the dress code plainly constitutes a ‘racial situation in which the plaintiff[s] became involved’ that confers protected status on the plaintiffs,” they argue, “including non-Black employees who have banded together with Black coworkers to wear the BLM apparel in a show of support, under a theory of associational discrimination.” 

According to the plaintiffs, “Associational discrimination broadly protects ‘individuals who, though not members of a protected class, are ‘victims of discriminatory animus toward

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third persons with whom the individuals associate,” in which case “the race of Black employees is ‘imputed’ to non-Black employees who are advocating on behalf of and associating with Black employees through wearing the BLM gear – the donning of which indisputably introduces a ‘racial situation’ into the workplace.” 

Ultimately, they argue that such a “doctrine does protect employees advocating in the workplace on behalf of protected employees,” and applies here given that “Whole Foods is disciplining (and terminating) Black and non-Black employees alike based on race – specifically its intolerance of advocacy on behalf of Black workers, in contrast to its tolerance for advocacy on behalf of other groups and messages.”

With the foregoing in mind, the plaintiffs claim that they and other Whole Foods employees are currently being “forced to choose between escalating discipline and possible termination, and engaging in protected activity –  expressing support for Black employees and opposing what they reasonably believe is discrimination and retaliation – in their workplace.” As such, they assert that the court should deny Whole Foods’ motion to dismiss and allow the case to proceed. 

At the same time, they argue that they have “sufficiently stated Title VII discrimination and retaliation claims, and intend to renew their request for preliminary injunctive relief … in order to protect [their] right to protest discrimination in their workplace (and keep their jobs) and to stand up for Black Whole Foods employees, in solidarity with the greater BLM movement.” 

*The case is Suverino Frith et al v. Whole Foods Market Inc, 1:20-cv-11358 (D. Mass.).