1st Circ. skeptical that Whole Foods’ BLM mask ban is racial bias

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A Whole Foods Market store in Santa Monica, California. REUTERS / Lucy Nicholson / File photo

  • Two judges reported that Whole Foods has the right to enforce the dress code
  • The panel wondered if the complainants faced racial bias
  • Judge dismissed national class action lawsuit in February

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(Reuters) – On Wednesday, a United States Court of Appeals panel appeared skeptical of allegations that Whole Foods Market Inc engaged in racial discrimination by using its company dress code to ban employees from wear face masks and other clothing supporting the Black Lives Matter movement.

A three-judge panel of the 1st U.S. Court of Appeals in Boston heard oral arguments in an appeal from a group of Whole Foods employees against a February judge’s ruling that they failed had not alleged that the company had retaliated against them because of their race.

Circuit judge Kermit Lipez told Shannon Liss-Riordan of Lichten & Liss-Riordan, who represents the workers, that the lack of information on the racial identity of individual complainants would make it difficult to articulate allegations of racial bias in under Title VII of the Civil Rights Act. from 1964.

“The fact that they are supporting a racial message (and) expressing their support for black employees does not in any way establish within the meaning of the law that they are as individuals discriminated against on the basis of their race, and I do not see not really that you have an answer to that claim, ”Lipez said.

Liss-Riordan told the court that the case presented a clear example of associative bias, in which workers are discriminated against for associating with a protected group such as blacks, regardless of their own race.

And any question of whether workers were protesting working conditions or the treatment of blacks by society in general should have been left to a jury and not dealt with on Whole Foods’ sacking motion, she said.

Twenty-seven plaintiffs had accused Whole Foods in the proposed nation-wide class action lawsuit of selectively applying its dress code prohibiting “visible slogans, messages, logos or advertisements” unrelated to the company.

Complainants said Whole Foods would send workers home without pay or discipline for wearing Black Lives Matter masks, even if it allowed employees to wear masks bearing other political messages and team logos sports.

U.S. District Judge Allison Burroughs in Boston said in February that Whole Foods, which is owned by Amazon.com Inc, has the right to enforce its dress code to target certain types of speech.

Employees who are not happy with the policy could try to persuade Whole Foods to change it, speak out outside the workplace, or find another place to work, the judge said.

Circuit Judge O. Rogeriee Thompson on Wednesday asked Liss-Riordan if his argument would extend to a Whole Foods employee who wears a Ku Klux Klan mask at work, as it sends a racist message as well.

“I’m trying to find out when an employer has the right to draw the line,” Thompson said.

Liss-Riordan said her clients intended to express solidarity with their black colleagues by wearing Black Lives Matter masks, not to make a “political statement.”

“But this is clearly a political statement for some,” replied Thompson.

Michael Banks of Morgan, Lewis & Bockius, who represents Whole Foods, said Burroughs correctly found that the complainants were not protected under Title VII because they did not explicitly oppose discrimination in place of employment. job.

“The mask said ‘Black Lives Matter’,” Banks said. “He didn’t mention Whole Foods (and) he didn’t identify any illegal employment practices.”

The panel included circuit judge Nancy Torresen.

The case is Frith v. Whole Foods Market Inc, 1st United States Court of Appeals, No. 21-1171.

For workers: Shannon Liss-Riordan from Lichten & Liss-Riordan

For Whole Foods: Michael Banks of Morgan, Lewis & Bockius

Read more:

Whole Foods punishes workers wearing Black Lives Matter face masks – lawsuit

Judge Dismisses Whole Foods Employee Claims Regarding Black Lives Matter Face Masks

Whole Foods Says Black Lives Matter Mask Ban Policy Legal

Whole Foods could end workers’ BLM lawsuit quickly to avoid ‘racist label’ – judge

Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor, employment and immigration law, including litigation and policy development. He can be reached at [email protected]

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