On February 5, 2021, Judge D.J. Burroughs of the United States District Court for the District of Massachusetts granted in part Whole Foods Market, Inc.’s (“Whole Foods”) Motion to Dismiss in response to Plaintiffs’ claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Also named in the suit was Amazon.Com (“Amazon”), who also filed a Motion to Dismiss that was granted in its entirety by the court. The case was captioned as Frith v. Whole Foods Market, Inc., Civil Action No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021).
At the heart of the case was an allegation by the 28 named Plaintiffs that Whole Foods and Amazon discriminated and retaliated against certain employees who wore Black Lives Matter (“BLM”) masks and other attire. The facts are as follows: in June 2020, Plaintiffs began showing their support for BLM by wearing masks and other clothing with BLM messages to work. The majority of the named Plaintiffs worked for Whole Foods and were required to wear masks. In the opinion, it is interesting to note that Judge Burroughs specifically mentioned Whole Foods’ public support for BLM.
When certain employees arrived to work in BLM attire, they were sent home. The employees that were sent home received no pay, but were given attendance points that can eventually lead to termination. In fact, one of the named Plaintiffs was terminated because of the points she accumulated from wearing BLM attire. Points could also affect an employee’s ability to receive a performance-based increase in salary. Other employees were placed on a performance improvement plan and received additional training. Some employees quit, some stopped wearing BLM attire, while other employees continued to wear BLM garb. One of the strongest arguments for the Plaintiffs was the fact that Whole Foods did not enforce its dress-code policy that prohibited employees from wearing clothing with slogans, logos, and advertising that is unrelated to Whole Foods.
Analyzing the Plaintiffs’ claims under both a disparate treatment and disparate impact framework, Judge Burroughs found that the Plaintiffs failed to allege a Title VII violation under either framework. The Plaintiffs did not allege that either Amazon or Whole Foods disciplined them because of their race or that application of the dress code had a disproportionate impact on employees of a particular race. The court also noted that “inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination” in the case where, like here, Amazon and Whole Foods allegedly allowed employees to wear clothing with other messaging. Also damning to the Plaintiffs’ claims was the fact that their allegations showed that the employers treated all employees wearing BLM attire equally, regardless of race. The court also made swift work of Plaintiffs’ retaliation claim, holding that wearing BLM attire to protest racism is not done to “oppose any practice made an unlawful employment practice”, which is required for a retaliation claim under the participation clause of Title VII.
While the court’s holding is limited to this judicial district, it does provide a framework for employers to follow when implementing guidelines for dress codes in an age where symbolic attire or garb is a part of modern day protests and political action. The court’s ruling could support an employer’s decision to ban clothing with slogans, logos, etc. In the event an employer decides to take such an action, consistent enforcement of a policy like the one in Frith is consistent with best practices. Just as the Plaintiffs argued in Frith, inconsistent application of a such a policy could be used to form the basis of a claim for discrimination as evidence of pretext.
You can access this article by GM Associate, Graham Newsome, by clicking HERE.
