In Case of First Impression, Federal Court Tackles Issue of Whether the Wearing of BLM Masks is Protected Activity Under Title VII

In a case of first impression, a federal judge in Massachusetts recently found that the wearing of Black Lives Matter (BLM) masks by employees at work was not protected activity under Title VII of the Civil Rights Act of 1964, as amended (Title VII).  

In Frith v. Whole Foods Mkt., Inc., Civil Action No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021), current and former employees of Whole Foods, which has publicly supported the BLM Movement, sued their employer claiming they were discriminated and retaliated against in violation of Title VII when Whole Foods disciplined them for wearing BLM masks in violation of its dress code policy that prohibited employees from wearing clothing with visible slogans, messaging, and/or advertising that was not Whole-Foods-related.    

The plaintiffs, who are from a variety of racial backgrounds, claimed that wearing BLM attire was a demand for better treatment of Black employees and that they continued to wear the BLM masks for the added purpose of challenging what they perceived to be racism and discrimination by Whole Foods for not allowing employees to wear BLM masks. They also pointed out that Whole Foods had allegedly not strictly enforced the policy, permitting at least one employee to wear a Sponge-Bob SquarePants mask.

Whole Foods moved for dismissal under Rule 12(b)(6) and, except as to one plaintiff's retaliation claim, the Court granted the motion.

Addressing the race discrimination claim first, the Court began its analysis with the well-established principle that the heart of a Title VII claim is the requirement that the unlawful conduct is "because of" an individual's protected characteristic, in this case, race.  Here, the plaintiffs did not allege any facts regarding their own races.  More specifically, they did not allege they were disciplined because of their race, or that Whole Foods' application of the policy had a disproportionate impact on employees of any particular race.  Instead, they alleged that Whole Foods disciplined them, regardless of their race, for wearing BLM clothing, and that the discipline was content-based and intended to suppress the BLM messaging.

Recognizing the importance of the BLM Movement, the Court found that, "inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination and because Title VII does not protect free speech in a private workplace."  Additionally, the Court dispensed with the plaintiffs' associational discrimination theory on similar grounds, namely, that plaintiffs failed to allege they were discriminated against on the basis of race, as opposed to race-related messaging.  

In connection with their retaliation claim, plaintiffs argued that wearing BLM attire is protected conduct under Title VII because they were doing so to protest racism and police violence against Black people and to show support for Black employees.  Rejecting this argument, the Court noted first, that wearing such attire is not done so "to oppose any practice made an unlawful employment practice" under Title VII, as required by the statute, and second, that wearing BLM attire to challenge what the employees perceived as racism and discrimination for not allowing employees to wear BLM masks was a "somewhat circular" theory.  In short, plaintiffs were arguing that they wore BLM masks to protest not being allowed to wear BLM masks.  The Court also found, based on facts in plaintiffs' pleading, the lack of a causal relationship between any allegedly protected activity and the discipline, and that plaintiffs "could not have formed a good faith, reasonable belief that Whole Foods' conduct ran afoul of Title VII."

The decision is important because it tackles a current issue, support for the BLM Movement, in a society polarized by politics and issues regarding race relations and racial injustice.  It also highlights important legal concepts, including that Title VII protection exists to protect against unlawful decisions made by employers because of an individual's protected characteristic, and that employees in private workplaces do not have First Amendment protections.