The First Circuit recently ruled that the policy by Whole Foods to ban its employees from wearing political messages on their face masks while working was not a discriminatory practice. On June 28, 2022, in a case called Kinzer v. Whole Foods Market, the First Circuit dismissed a lawsuit brought by a class of Whole Foods employees who claimed there were unlawfully disciplined for violating a previously unenforced dress code by wearing Black Lives Matter (“BLM”) face masks at work.
The Court said that the case could not go forward because these employees did not plausibly allege the discipline was race-based or retaliatory where: 1) they never alleged that only those wearing BLM masks were disciplined once Whole Foods began enforcing the dress code, and 2) there was an obvious alternative explanation reason for Whole Foods’ decision to start enforcing the dress code when it did – namely, the need to use face masks at work because of COVID.
While delivering a loss for these particular employees, the decision actually expanded the potential rights of employees generally going forward. This is because the First Circuit Court recognized for the first time that claims of “associational” race discrimination are viable under Title VII. Other circuits had already recognized these types of “associational” discrimination cases, but now, through its decision in Kinzer, the First Circuit has done so for the first time. Here are the details:
In the spring of 2020, Whole Foods workers began wearing face masks to work in response to the coronavirus pandemic. Some of the masks worn to work had images of cartoon characters like SpongeBob SquarePants, as well as pictures of vegetables and other prints. Then, around June 2020, following the death of George Floyd, many Whole Foods employees began wearing masks with the message “Black Lives Matter.” The employees claimed that they wore the masks “in a show of solidarity” with the BLM movement and “to protect racism and police violence against Blacks and to show support for Black employees.” Many of these employees were Black, but other employees who were not Black also wore the BLM masks.
The employees believed that Whole Foods would not take issue with the decision to wear the BLM masks. First, Whole Foods had expressed support of inclusivity and equality. The Company had publicly expressed support for the Black community and the BLM message posting on their website messages such as “Racism has no place here” and “We support the black community and meaningful change in the world.”
the Company had not previously enforced its dress code policy, according to the Plaintiffs. That policy provided that employees were prohibited “from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related.” In the past, the Company had allowed employees to express support for LGBTQ+ co-workers through items like t-shirts and other apparel worn to work without finding a violation of the dress code. The employees who wore face masks adorned with cartoon characters or other prints also were not disciplined in spring 2020 for violating the dress code.
But, in June, 2020, after employees started wearing BLM masks, Whole Foods began to enforce its dress code policy. The Company sent home without pay and assigned disciplinary points to employees who refused to remove their BLM masks at work. The disciplined employees including both Black and non-Black employees. In July 2020, the employees filed a lawsuit against Whole Foods alleging that the selective discipline of the dress code policy to ban BLM masks constituted racial discrimination and retaliation in violation of Title VII.
Before any discovery had even been taken, the United States District Court for the District of Massachusetts dismissed the case finding that 1) there was no viable allegation of race discrimination where employees were treated the same regardless of race (i.e., both Black AND non-Black employees were disciplined for the BLM masks), and 2) there was no retaliation because wearing BLM attire to protest racism, police violence against Blacks and/or to show support for Black employees, was not opposition to an unlawful employment practice under Title VII. On appeal the First Circuit upheld the dismissal, but on different grounds.
The First Circuit agreed with the District Court that the Plaintiffs had indeed alleged that Whole Foods disciplined Black and non-Black employees for wearing BLM masks. But it disagreed that these allegations precluded or even undercut the race discrimination claim. The First Circuit explained that even where there are allegations that employees of different races are treated the same, a Plaintiff still might theoretically have a race discrimination claim. The decision stood on the principle of “associational” discrimination, a first for the First Circuit, and ruled that the Whole Foods employees had alleged just this type of claim.
The theory of “associational” discrimination concerns punitive actions taken by an employer against an employee because the employer disapproves of an interracial association with a third party. The classic example would be an employer terminating a white employee because she has a Black spouse. In that scenario, “the employee suffers discrimination because of the employee’s own race in addition to the race of the other person, who may not even be a party to the suit.”
Similarly in the Whole Foods case, the First Circuit said that the Whole Foods employees had alleged that the Company selectively enforced its dress code against Black employees and also against non-Black employees who expressed their support for Black employees with BLM masks. In essence, just like the employer who fires a white employee married to someone Black, Whole Foods allegedly discriminated against Black employees based on their race and against non-Black employees based on their status as non-Black people associating with Black people. Such allegations, according to the First Circuit, support a viable “associational” discrimination claim under Title VII.
After recognizing this new type of discrimination claim, the First Circuit held nonetheless that the particular associational discrimination claim alleged against Whole Foods should be dismissed.
The Court focused on the fact that these Plaintiffs failed to allege that Whole Foods selectively enforced the dress code policy against only those wearing BLM masks. Further to this point, the Court noted that Plaintiffs alleged that Whole Foods failed to discipline employees wearing other types of masks at some point after the pandemic started, but the Plaintiffs never alleged that this selective enforcement happened after Whole Foods began enforcing the policy against BLM mask wearers. Thus, there was no allegation that Whole Foods let other employees wear masks with other political slogans that violated the dress code after Whole Foods started enforcing the dress code policy against those wearing BLM masks. The Plaintiffs’ silence in that regard was deafening to the First Circuit, as the court seemed to believe that if such selective enforcement had actually happened then the Plaintiffs would have so alleged in their complaint.
The Court also noted that it was unclear from the complaint whether these other masks worn bearing cartoon characters and other prints worn by unpunished employees even violated the dress code policy against “slogans, messages, logos or advertising.”
The crux of the employee’s discrimination claims, therefore, appeared to the Court less about selective enforcement and more about the allegedly suspicious timing of the employer’s enforcement. The Court reasoned that the employees seemed to be alleging that Whole Foods began enforcing the dress code policy only after the employees began wearing BLM face masks a as a pretext for racial discrimination.
The Court’s problem with this theory was that there was an obvious, common sense alternative explanation the timing that was not race-based – namely that the pandemic had for the first time ever created conditions for employees to wear masks that could easily and in a highly visible way display non-company messages at work. “It is logical that Whole Foods would have a different perspective on enforcing its dress code policy in the era of employee mask-wearing” than it did previously. In other words, it only made sense, said the Court, that Whole Foods would begin to enforce its dress code policy because it did not want to allow the mass expression of controversial messages by employees in their stores.
The Court aptly noted that this type of restriction might implicate free speech concerns in other contexts, it did not and could not support discriminatory motive or pretext. And it would not support a constitutional claim either, because Whole Foods is a private employer not subject to the First Amendment. Indeed, from the perspective of the First Circuit, the Company may enforce its own dress code so long as it is not enforced in a non-discriminatory manner. This principle was previously suggested in the much-discussed Cloutier v. Costco case from 2004, where the First Circuit held that the retail employer could terminate its employee for refusing to comply reasonably with the dress code concerning facial piercings due to the employee’s religious objections. The employer, according to that opinion, was entitled to its own public image, and failing to enforce its dress code in a reasonable manner would have constituted an “undue burden” under Title VII.
As for the retaliation claim, the First Circuit dismissed it too. Plaintiffs had alleged that they were disciplined for continuing to wear the BLM masks, in part, to protest the Company’s racially-based, selective enforcement of the dress code against those wearing BLM masks. The problem with the claim, however, was that the employer’s decision to discipline the employees predated the protected activity. To be clear, the employees alleged no more than that Whole Foods began enforcing the dress code to prohibit BLM masks in June, 2020, and from that point on enforced its dress code policy against the mask-wearers. Such timing could not logically support an allegation that the protected activity caused the adverse employment action, as required for a viable retaliation claim, where the discipline started before the alleged protected activity commenced.
So, what does all this mean? First, after this case, employers in the First Circuit are subject to a new theory of employment liability – associational discrimination claims. The First Circuit has now made clear that an employee who plausibly alleges that an adverse employment action based on his or her association with an employee of another race theoretically can pursue a viable claim of associational discrimination. On the other hand, the Court appears poised to construe very narrowly allegations that support this type of claim. If, as in the Whole Foods case, the allegations do not plausibly allege discrimination, the Court can and will dismiss. Finally, the Kinzer case confirms that private employers are permitted to have and enforce dress code that prohibit even political messaging in their workplace. This is NOT a First Amendment violation and it is lawful so long as it is enforced without regard to race, sex, religion and other protected classes.