The class action lawsuit over Whole Foods Market’s refusal to permit employees to wear Black Lives Matter face masks and other attire is growing, with 28named plaintiffs in nine states and mounting examples of the company not enforcing the dress code it cites as the basis for the ban.
The lawsuit, filed in US District Court in Boston, now also includes Whole Foods’ parent company Amazon.com as a defendant, based on the fact that an Amazon Prime shopper, who fills online orders at a Cambridge Whole Foods and is employed directly by Amazon, was disciplined for wearing a mask and has become a plaintiff.
A hearing is set for Sept. 3.
The lawsuit claims the grocery chain is discriminating against employees wearing Black Lives Matter apparel because it has overlooked employees in sports-, LGBTQ-, and American flag-themed items, all of which also violate a policy against workers wearing non-company-related slogans and messages. An employee in Atlanta said she was told that she couldn’t wear a Black Lives Matter T-shirt but that her rainbow “Equality” shirt was fine, according to court documents.
A number of the plaintiffs work at two Cambridge stores that have been the site of numerous rallies over the summer in support of employees expressing their solidarity with the Black Lives Matter movement following the death of George Floyd. Floyd, a 46-year-old Black man, died in Minneapolis while being arrested for allegedly using a counterfeit bill. Workers who wore the masks were sent home without pay and disciplined; two of them have been fired, according to the lawsuit, including an employee of the River Street store in Cambridge.
Whole Foods employees are part of a wave of workers around the country trying to spread the Black Lives Matter message and encountering resistance from major companies that have publicly disavowed racism. The Whole Foods website declares “racism and discrimination of any kind have no place at Whole Foods Market,” and Amazon has committed $10 million to racial justice organizations.
Last week, Whole Foods filed a motion to dismiss the case, stating that most of the plaintiffs had not filed discrimination charges with the Equal Employment Opportunity Commission, as required by Title VII of the Civil Rights Act before civil lawsuits can be filed. The discrimination claim itself isn’t valid, the company said, because employees of all races were sent home or otherwise disciplined for refusing to take off their Black Lives Matter masks.
In its motion, Whole Foods said, “The Supreme Court has held consistently that Title VII does not protect workplace speech about political issues, and that private employers like Whole Foods ‘need a significant degree of control over their employees’ words and actions,’ which is crucial to the employer’s objectives in maintaining an efficient and productive work environment.”
The lawsuit notes that a federal agency recently found that the phrase “Black Lives Matter” is not a political statement and can be used by federal employees.
Whole Foods declined to comment on pending litigation but stated earlier that “we must uphold our policies in an equitable and consistent manner.”
Shannon Liss-Riordan, the plaintiffs’ attorney, said workers filed a joint charge with the EEOC and weren’t required to file individually. And the discrimination claim is based on multiple forms of discrimination, including the company enforcing its dress code policy in a discriminatory and retaliatory way. “It wasn’t until employees starting putting on masks that said Black Lives Matter that Whole Foods started enforcing its dress code policy,” she said.
Workers are putting their jobs on the line during a pandemic to support the Black community, she said, and exposing hypocrisy in the process.
“We have a major corporation making a statement that they think will play well with their base and saying that they support progressive causes,” she said, “but then when it comes to letting their employees speak about them in the workplace, they silence them.”