Whole Foods workers lose appeal over ‘Black Lives Matter’ masks

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FILE PHOTO: A Whole Foods Market store is seen in Santa Monica

By Jonathan Stempel

(Reuters) – A U.S. appeals court said Whole Foods employees cannot sue the upscale grocery chain or its parent Amazon.com Inc after being sent home without pay or disciplined for wearing Black Lives Matter face masks on the job.

In a 3-0 decision on Tuesday, the 1st U.S. Circuit Court of Appeals said the employees failed to show that Whole Foods’ enforcement of a previously unenforced dress code by banning the masks amounted to racial discrimination or violated Title VII of the federal Civil Rights Act of 1964.

The Boston-based court said it was “pure conjecture” to suggest that racial bias drove Whole Foods into selectively enforcing its dress code, which also covered visible slogans, logos and ads unrelated to the company.

Whole Foods’ timing “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,” Circuit Judge Kermit Lipez wrote.

Shannon Liss-Riordan, a lawyer for the employees, said they were disappointed and evaluating their options. She also represents workers in related proceedings before the National Labor Relations Board.

Whole Foods welcomed Tuesday’s decision, saying its dress code has long promoted a “welcoming, safe, and inclusive shopping environment.”

It has also called the code “facially neutral,” and with Seattle-based Amazon expressed support for Black Lives Matter.

The proposed class action covered workers in Massachusetts, California, Georgia, Indiana, New Hampshire, New Jersey, Pennsylvania, Virginia and Washington.

A lower court judge had dismissed much of the case, on somewhat different grounds, in February 2021.

The Black Lives Matter movement started after several Black people were killed by police in the United States.

A video showing the May 2020 killing of George Floyd by former Minneapolis police officer Derek Chauvin sparked nationwide protests about racial injustice.

The case is Frith et al v Whole Foods Market Inc, U.S. District Court, 1st U.S. Circuit Court of Appeals, No. 21-1171.

(Reporting by Jonathan Stempel in New York; Editing by David Gregorio)

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