Dive Brief:

• Whole Foods violated Title VII of the Civil Rights Act of 1964 by punishing workers who wore face coverings designed to support the Black Lives Matter movement, employees alleged in a complaint (Frith, et al. v. Whole Foods Market, Inc., No. 1:20-cv-11358 (D. Mass. July 20, 2020)).
• Whole Foods requires employees to wear face masks due to the coronavirus, the complaint said. After the May 25 killing of George Floyd, some workers began "showing their support for the Black Lives Matter movement" by wearing masks bearing the message "to protest racism and police violence against Blacks and to show support for Black employees." Despite support shown publicly for the movement by Whole Foods and its parent company, Amazon, the grocer began disciplining workers for wearing such masks. 
• The store has a policy that "prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related," the workers said. This policy went unenforced, even as workers sported pride flags, sports logos and political messages. But various Whole Foods stores sent employees home, in some cases with no pay, after workers refused to remove Black Lives Matter-emblazoned masks, workers alleged. Some of the alleged punishments included disciplinary points. At least one worker has been terminated after accumulating points, most of which she earned for wearing Black Lives Matter masks.

Dive Insight:

Whole Foods is not the first employer to encounter backlash after prohibiting employees from wearing masks, pins and other apparel supporting the Black Lives Matter movement. A petition with nearly 3,000 signatures protests Costco’s move to punish workers for wearing such masks after it allowed others to don coverings with flags, rainbows and other designs, Buzzfeed News reported. And Starbucks recently reversed its policy to allow workers to wear clothing and accessories in support of the movement, HR Dive sister publication Restaurant Dive reported.

Many private employers have the right to regulate employee dress, Wendy Greene, a professor at Drexel University Thomas R. Kline School of Law, told Business Insider. But employers must avoid several situations that could create legal trouble. Managers may not, for example, write up Black employees for wearing Black Lives Matter gear while allowing non-Black workers to wear attire supporting other issues. And Title VII and the National Labor Relations Act, as well as state and local laws, may protect workers who wear such items in protest of "racially discriminatory practices specific to their workplace," Greene told Business Insider.

As Greene noted, ven policy enforcement is paramount to compliance with Title VII and anti-discrimination laws. The 3rd U.S. Circuit Court of Appeals recently ruled in favor of Rutgers University because it showed it had denied other employees promotions, just as it had the plaintiff, who claimed he was denied one because of his disability.