In a ruling on June 28, the U.S. Court of Appeals for the First Circuit found that Whole Foods grocery markets did not engage in racial discrimination when it disciplined employees for wearing “Black Lives Matter” masks while at work. The court stated there was a plausible non-discriminatory reason for its actions, which was to prevent the mass display of what it considered to be a controversial message in its stores.

In Frith v. Whole Foods Market, Inc., Whole Foods had a dress code policy prohibiting “employees from wearing clothing with visible slogans, messages, logos or advertising that are not company-related.”

Granted, this was Whole Foods, known for its relaxed dress codes and tolerance of employees displaying a variety of piercings and tattoos. So, the no-slogan rule was generally unenforced. That all changed during the hectic summer of 2020 in the wake of the protests following George Floyd’s death. Whole Foods managers began to notice many employees – of all races – began wearing “Black Lives Matter” masks.

The Company soon began enforcing its dress code policy stating those who refused to remove their masks would be sent home without pay. The employees promptly sued for racial discrimination under Title VII.

Under Title VII, illegal treatment may exist when a dress code policy is applied in a manner that is intended to discriminate. The First Circuit rejected the employees’ discrimination claim, noting the law requires the action to be taken “because of” the employees’ race.

The First Circuit noted that, although the timing of the enforcement may have been suspicious, there was no evidence Whole Foods enforced the policy selectively, for example only against BLM masks but not others. In addition, the company articulated a non-race-based reason for banning the display of BLM masks, mainly that it did not want to allow the mass expression of a controversial message by employees in their stores. Of course, whether or not the BLM message is controversial may depend entirely on one’s age and which side of town one resides, but that’s an argument for another time.

It should be noted, decisions to ban certain messaging in the workplace can be thorny. While this court decision was supportive of an employer’s authority related to dress-codes, there were substantial PR consequences. Whole Foods became the target of national media attention, much of it negative. In addition, it is currently defending a similar matter before the National Labor Relations Board, which could potentially find a violation of the National Labor Relations Act. More to follow.