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‘Alternate explanation’ sinks suit over ‘Black Lives Matter’ mask ban

Whole Foods Market


While they had pleaded bias claims “conceptually consistent with Title VII,” Whole Foods employees disciplined for wearing Black Lives Matter face masks had not established viable discrimination or retaliation claims, the 1st U.S. Circuit Court of Appeals has affirmed.

The plaintiff employees claimed that Whole Foods only began enforcing its dress code policy once Black and non-Black employees alike embarked on a mask-wearing campaign after the death of George Floyd in spring 2020.

But Judge Kermit V. Lipez wrote that their allegations “simply do not support a plausible inference that Whole Foods’ prohibition on employees displaying the Black Lives Matter message in their stores was a pretext for racially discriminating against the individual employees.”

When assessing a Title VII discrimination claim, the “proper focus” is on the protected characteristic of the individual plaintiff, the 1st Circuit noted, citing the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County.

Nonetheless, other circuits have recognized so-called “associational” discrimination claims, which typically involve an employer sanctioning an employee based on its disapproval of a social relationship between the employee and a third party based on a protected characteristic.

The 1st Circuit decided it was not ready to go as far as the 6th Circuit has, recognizing a claim for discrimination based on one’s “advocacy on behalf of protected class members.” The 1st Circuit determined reaching such a result would require an “atextual” reading of Title VII.

Still, the 1st Circuit found that the plaintiffs’ other allegations — that the company discriminated against Black employees based on their race and against non-Black employees based on their associations with their Black co-workers — were “technically viable.”

But what the plaintiffs were calling “selective enforcement” of Whole Foods’ dress code policy would more accurately be described as “suspicious timing,” the 1st Circuit found. “Common sense” suggested that there was a non-raced-based reason for that timing, according to the court.

“At that time, the coronavirus pandemic had created the conditions for employees to easily and in a highly visible fashion display non-company messages at work,” Lipez wrote. “It is logical that Whole Foods would have a different perspective on enforcing its dress code policy in the era of employee mask-wearing.”

Moreover, “rightly or wrongly,” “Black Lives Matter” had become a controversial, politicized phrase, Lipez added.

“Thus, the timing of Whole Foods’ decision to begin enforcing its existing policy may be explained by the ‘obvious alternative explanation’ that Whole Foods did not want to allow the mass expression of a controversial message by employees in their stores,” he wrote.

The plaintiffs needed to supply facts pointing away from that “obvious alternative explanation” but had not done so, the court concluded.

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