Whole Foods workers sue over Black Lives Matter masks

A GROUP OF WHOLE FOODS employees working in four cities, including Cambridge, are suing the company for discrimination, alleging the store selectively enforced a dress code by barring employees from wearing Black Lives Matters masks at work.

The lawsuit, filed on Monday, does not challenge Whole Foods’ ability to have a dress code for employees, but it argues that the code was enforced selectively and in a discriminatory matter. It says the company then retaliated against employees who protested.

“Its policy constitutes discrimination against Black employees on the basis of race, discrimination against other employees for associating with and supporting their Black co-workers, and retaliation against employees for opposing this discrimination in the workplace,” according to the lawsuit.

Whole Foods employees are required to wear masks at work due to the COVID-19 pandemic, but the company’s policy bans employees from wearing clothing with slogans. According to Whole Foods, it has a long-standing dress code that prohibits any visible slogans, messages, logos, or advertising that are not company-related. As protests spread nationwide over the killing of George Floyd, an unarmed black man, by a white police officer, several Whole Foods employees wanted to wear masks with a Black Lives Matter slogan, but were prohibited from doing so.

The lawsuit says Whole Foods did not enforce its dress code policy against other employees – for example, those who wore gay pride pins or apparel with sports logos. Employees were also allowed to wear masks with images and names of vegetables or with a picture of SpongeBob, the lawsuit says. The company, according to the lawsuit, only began to enforce the dress code when employers wore Black Lives Matter masks and other apparel.

According to the lawsuit, Whole Foods sent some employees who wore the masks home without pay and some were given disciplinary “points.” More than 40 employees have been disciplined in multiple states.

One organizer of the protests who is also among the plaintiffs, Savannah Kinzer, claims she was fired from her job at a Whole Foods in Cambridge for organizing her colleagues to wear masks and protest.

The lawsuit is asking a judge to order Whole Foods to let employees wear Black Lives Matter masks at work, to expunge records for those who were disciplined, reinstate Kinzer, provide back pay for anyone who was sent home, and award monetary damages to the workers.

Whole Foods says Kinzer was fired not for wearing a Black Lives Matter mask, but for violating the store’s time and attendance policy by not working her assigned shifts, reporting late for work multiple times in the past nine days, and choosing to leave during her scheduled shifts. The company says she was given chances to comply with company policies.

“While we cannot comment on pending litigation, it is critical to clarify that no Team Members have been terminated for wearing Black Lives Matter face masks or apparel,” a company spokesman said in a statement. The statement continued, “As an employer we must uphold our policies in an equitable and consistent manner.”

The company’s policies say it has “zero tolerance” for retaliation.

Kinzer, in a statement, called Whole Foods’ policy hypocritical. “Whole Foods states prominently on its website and on signs in its stores that ‘Racism has no place here,’ but won’t allow employees to express solidarity with Black lives,” Kinzer said.

Shannon Liss-Riordan, the labor lawyer who filed the lawsuit in US District court in Boston, said that while Whole Foods and its parent company Amazon have both made statements opposing racism, “it seems to be that they say what they think their customer base wants to hear, but when it actually comes to acknowledging those rights and principles with their employees, not so much.”

Protests on behalf of the employees have been held outside stores in multiple cities, including Cambridge, and some protesters have talked about boycotting Whole Foods.

The 14 employees who filed the lawsuit work in Cambridge; Bedford, New Hampshire; Berkeley, California; and Seattle. They seek to represent all Whole Foods employees who were subject to the policy.

In a press release, US Sen. Ed Markey and US Rep. Ayanna Pressley both voiced support for the workers. Pressley, who is black, said in a statement, “The Whole Foods workers standing up to affirm that Black Lives Matter are carrying forward the tradition of protest and activism that remains at the heart of our struggle for civil rights.”

The employees have also filed a complaint with the National Labor Relations Board.

According to news reports, multiple large companies – like Chick-fil-A and Costco – have barred employees from wearing Black Lives Matter gear, even as other companies – like Starbucks – have allowed it.

The question was also recently raised whether employees of the federal government can engage in Black Lives Matter-related activity in the workplace, under the Hatch Act’s ban on government workers engaging in political activity on the job. The US Office of Special Counsel ruled that Black Lives Matters is an issue-based movement, not a partisan political one, and employees are not barred from wearing Black Lives Matter clothing or displaying Black Lives Matter paraphernalia while on the job.