Battle Between Whole Foods and Employees Over Black Lives Matter Masks Continues

Elizabeth DiNardo, Esq. | Associate Counsel


Tensions continue to mount in the class action lawsuit between upmarket grocery chain Whole Foods Inc. (“Whole Foods”) and a class of employees who allege that the store violated Title VII of the Civil Rights Act by refusing to allow employees to wear “Black Lives Matter” face masks while on duty. Plaintiffs filed a reply brief in support of their emergency motion for preliminary injunction on August 11, 2020, in swift response to the defendant’s August 5, 2020, memorandum in opposition of preliminary injunction.

In the court filing, Whole Foods fought back against allegations that its actions were discriminatory and argued that by asking employees to refrain from wearing masks with slogans on them, the company was merely adhering to its long-standing dress code policy which prohibits wearing clothing, hats or masks with slogans or messages.

The lawsuit was originally filed on July 20, 2020, in federal court in Massachusetts by 27 named plaintiffs, all of whom work, or did work for, Whole Foods. In the complaint, the plaintiffs argued that despite Whole Foods, and its parent company Amazon, publicly expressing support for the battle for racial equality, the store began to discipline employees who were seen wearing Black Lives Matter branded face masks. The plaintiffs alleged that prior to the defendant taking issue with the masks, the grocery chain had never made any attempts to enforce the stores’ dress code policy and claimed employees had previously gone undisciplined after wearing clothing displaying other political messages. In the instance of the Black Lives Matter masks, however, staff members who wore them were allegedly sent home without pay and at some store locations, given disciplinary points which increased their risk for termination.

In the August 11th brief, the plaintiffs argued that an injunction is needed as Whole Foods’ ongoing violation of Title VII constitutes irreparable harm. Notably, plaintiffs and class members cited the risks of imminent firing if they continue to speak out against discrimination by wearing Black Lives Matter masks. Two of the plaintiffs, Savannah Kinzer and Haley Evans, alleged that they were fired as a result of wearing Black Lives Matter masks to work.

In support of their arguments, the plaintiffs point to the fact that the federal government has declared that Black Lives Matter is not a political statement and that government employees are allowed to wear apparel displaying the message.

The case is: Frith v. Whole Foods Market Inc., Case No.: 1:20-cv-11358, in the U.S. District Court for the District of Massachusetts.


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