Whole Foods employees lose appeal for right to wear Black Lives Matter masks

A U.S. appeals court on Tuesday sided with Whole Foods and Amazon by striking down an appeal from former company employees who claim they were sent home without pay or otherwise disciplined for wearing masks reading “Black Lives Matter.”

The Whole Foods employees filed a lawsuit against the grocery chain and its parent company in 2020, arguing their dress code policy, which bans “visible slogans, messages, logos, or advertising that are not company-related,” was selectively enforced to target items bearing the anti-racism slogan.

In the suit, the employees alleged racial discrimination and retaliation in violation of Title VII, which employment discrimination based on race, color, religion, sex and national origin.

In February of 2021, a lower court judge dismissed nearly every component of the employees’ lawsuit against Whole Foods.

“At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace,” U.S. District Judge Allison Burroughs wrote at the time, according to Reuters. “However unappealing that might be, it is not conduct made unlawful by Title VII.”

In a 3-0 decision on Tuesday, the 1st U.S. Circuit Court of Appeals upheld the previous ruling, saying the employees failed to adequately prove racial discrimination.

“We ultimately reach the same conclusion as the district court that appellants have failed to adequately plead their claim,” the ruling read.

Shannon Liss-Riordan, the employees’ attorney, told The Hill they were “very disappointed” by the decision.

“It is clear that Whole Foods retaliated against employees for protesting what they reasonably believed to be discriminatory and retaliatory conduct by their employer when it disciplined employees for wearing Black Lives Matter masks to work — after failing to enforce its dress code with respect to other messaging, including political messaging,” she said.

A Whole Foods spokesperson expressed the grocery chain’s appreciation for the decision.

“Whole Foods Market’s dress code policy has long promoted a welcoming, safe, and inclusive shopping environment focused entirely on high-quality food.”

Updated: 12:50 p.m.