By Jonathan Stempel
(Reuters) – A federal judge on Friday dismissed nearly all of a lawsuit accusing upscale grocery chain Whole Foods Market of illegally punishing workers who wore Black Lives Matter face masks on the job.
Twenty-seven plaintiffs had accused Whole Foods in a proposed nationwide class action filed in Boston of selectively enforcing its dress code banning “visible slogans, messages, logos or advertising” unrelated to the company.
The plaintiffs said Whole Foods would send workers home without pay or impose disciplinary actions for wearing the masks and related apparel, even as it let employees wear masks bearing political messages and sports team logos.
U.S. District Judge Allison Burroughs, however, said Whole Foods and its parent, Amazon.com Inc, did not engage in racial discrimination or violate Title VII of the federal Civil Rights Act of 1964.
“At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace,” she wrote. “However unappealing that might be, it is not conduct made unlawful by Title VII.”
Burroughs said one plaintiff can pursue a retaliation claim.
The plaintiffs’ lawyer Shannon Liss-Riordan expects her clients to appeal, saying in an email the decision “goes against the tide of case law recognizing the critical importance of eradicating race discrimination from worksites across our country.”
Amazon and Whole Foods did not immediately respond to requests for comment.
Whole Foods has said its dress code was “facially neutral” and that it has “zero tolerance” for retaliation. It has also along with Amazon expressed support for Black Lives Matter.
Burroughs said employees who are not happy with the policy could try to persuade Whole Foods to change it, express themselves outside the workplace and perhaps encourage consumers to shop elsewhere, or find somewhere else to work.
A video showing the death last May 25 of George Floyd at the hands of Minneapolis police sparked nationwide protests about racial injustice, including the treatment of Blacks in police custody.
The case is Frith et al v Whole Foods Market Inc, U.S. District Court, District of Massachusetts, No. 20-11358.
(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler and Sonya Hepinstall)
