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Workers at Whole Foods stores in Cambridge sue for right to wear Black Lives Matter masks

Workers at the Whole Foods stores on River Street and Alewife Parkway - including one who says she was fired from the River Street store on Friday - have filed what they hope will be a class-action discrimination suit against the chain over the issue of being sent home if they show up for work with masks reading "Black Lives Matter."

The suit, filed this morning in US District Court in Boston by attorney Shannon Lis-Riordan, also names workers at Whole Foods stores in New Hampshire, Washington state and California as plaintiffs.

The complaint alleges managers had long ignored the company's own ban on apparel and buttons with visible non-company slogans - until Black Lives Matter became a revived movement following the death of George Floyd, and that this constitutes both racial discrimination against Black workers and a violation of their right to protest workplace discrimination

Whole Foods employees have worn apparel bearing various logos, such as those of local sports teams, as well as apparel with other messages and slogans, including political messages, without facing discipline. Employees have commonly worn Pride flags in support of their LGBTQ+ coworkers without being disciplined by Whole Foods. Employees have not been sent home or received discipline for wearing Pride pins or apparel.

When employees have violated the dress code policy, in the past, it has either been ignored, or sometimes management has informed employees about it but without sending them home or imposing other discipline.

This extended to masks that employees are now required to wear due to Covid-19, the complaint continues:

Whole Foods employees began wearing masks emblazoned with different images or slogans. For example, at the Bedford, New Hampshire, Whole Foods location, one employee was allowed to wear a SpongeBob mask without any repercussions. At the Seattle, Washington, location, another Whole Foods employee wore a mask with images and names of vegetables, without being disciplined. At the Berkeley, California location, employees have been allowed to wear masks with prints.

But workers who put on BLM masks were sent home without pay or written up in disciplinary reports, the complaint continues - even as both Whole Foods and owner Amazon professed to support the movement:

Whole Foods’ policy of not allowing its employees to wear Black Lives Matter masks is discriminatory, both against Black employees who are participating in and leading the employee protest, and against other employees who are associating with and advocating for Black Whole Foods employees and protesting racism and discrimination in the workplace, by wearing the masks and showing support for their Black co-workers.

Further, as the protest has proceeded over the last weeks, employees are wearing the masks in order to challenge what they perceive to be racism and discrimination by Whole Foods for not allowing employees to wear the Black Lives Matter masks. Whole Foods’ discipline of these employees constitutes retaliation against the employees for engaging in protected activity, namely opposing discrimination and racism in the workplace. ...

Plaintiffs and other Whole Foods employees believe that the decision by Whole Foods to selectively enforce its dress code policy in order to ban Black Lives Matter masks is discriminatory and unlawful because Whole Foods has not strictly enforced the dress code policy before and did not discipline employees for wearing apparel with other political messages, including apparel similarly supportive of their LGBTQ+ coworkers.

The complaint continues:

On July 18, 2020, Plaintiff Savannah Kinzer, who has been a leader in organizing employees to wear the Black Lives Matter masks (and has led a number of protests outside Whole Foods stores, challenging the company’s policy of not allowing employees to wear the masks), was fired. She was terminated due to her accumulation of disciplinary points, most of which she received as a result of wearing the Black Lives Matter mask. She was also terminated in retaliation for being a leader in organizing the employees to wear the masks and protesting the company’s policy of disciplining employees for wearing the masks.

The suit asks a judge to order Whole Foods to stop banning the masks, give Kinzer her job back and pay damages.

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Comments

If Whole Foods has been allowing others to wear pins/items of political movements, then she's doing the right thing here, and the message is a good one.

Will there be an unintended consequence, if she wins, where others can wear masks, etc. of political movements that she doesn't agree with? If she wins, can someone now where "All lives matter," or "blue lives matter" on a face mask?

Yes, it's a private business that can decide what is acceptable, and what isn't. Does that change if the court system makes that ruling for you? Are you now bound to being equal in all ways? - I don't know the answer, but asking the question.

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Voting closed 33

She's not being allowed to wear a pin? Big difference between a pin and a mask.

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Had Whole Foods been allowing pins, etc. as a policy. Or was it just that store managers just not enforcing the dress code. There's a big difference there.

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No, because it's not political. It's a basic human rights statement to say a black life is equal to a white life.

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Whole Foods needs to create facemasks that are part of the employee uniform. The masks could be distributed in the same manner as they distribute the jerseys all employees wear. Cannot believe corporate didnt come up with this solution from the get go....

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I'm sure conservatives would love a precedent protecting political speech at work

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This is the way to stop it and be fair.

Give everyone Whole Foods branded mask. or say "paper masks only"

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The store allowed employees to wear items that had logos, slogans, or whatever that were not connected with the company. Why not "Black Lives Matter?"

As I always say, the message isn't important, but when some messages are allowed and others are not, you are censoring.

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Voting closed 32

The cases were mild enough that they got lazy with enforcement. Enforcing guidelines seems appropriate, because as others have already pointed out, allowing this to continue opens the door to all slogans, such as MAGA. There are plenty of places to advocate your beliefs, and behind the cash register at the grocery store isn't one of them.

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What makes Pride pins “mild” and “Black Lives Matter” not?

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For the record, I think Whole Foods should allow (if not encourage) BLM masks. But it's a private company which is free to set their own policies. So long as they don't discriminate based based on a protected class of people, they are OK.

So saying no BLM masks is in their right even if it's stupid policy. If they allowed white (or Black) employees to wear the BLM masks but not the other group, they'd be in violation of the law.

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"you are censoring" is accurate but employers can generally censor their employees while they are working. Employees are paid to represent the company. Promote your personal beliefs on your own time.

There are some exceptions of course, like right to unionize, and I actually wear a spaghetti strainer on my head while working because it's muh religion.

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Individual managers choosing to overlook rules violations is NOT the same as the company allowing employees to wear masks

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Create a policy stating that only company provided logo'd masks can be wore.

You fix the policy and this whole thing goes away.

Censoring does not apply here to a private business. They can do as they what. You are free not to shop there nor work there.

I get your point tho but its a private business.

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But the horse left the barn.

There's definitely a disparate treatment. This might not gain traction in the courts, but it's still wrong.

They should have WF masks, anyways. It's branding.

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of lax enforcement of the rules and decided to crack down. Unless it can be demonstrated that other people were allowed to wear slogans on their masks the same day these employees were sent home, it's not disparate treatment.

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Meanwhile, Starbucks backed down quickly and just issued BLM t-shirts to staff.

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For the record, I strongly support police reform and other substantive measures to eliminate racial disparity. However, in my opinion, plastering a slogan everywhere - no matter how important the message may be - is NOT going to accomplish that.

We need to effect real change. So far, all we've seen is nothing but a lot of symbolic actions that will not accomplish that.

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"The complaint alleges managers had long ignored the company's own ban on apparel and buttons with visible non-company slogans"

"The store allowed employees to wear items that had logos, slogans, or whatever that were not connected with the company. "

I've been shopping at Whole Foods for something like a decade and I have never seen an employee wearing a shirt with a political slogan or even so much as a prominent clothing company logo. Same at Trader Joes, everyone's just wearing generic plain or patterned shirts/t-shirts.

There's nothing wrong with the message, but claiming WF is cracking down specifically on BLM is nonsense.

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but c'mon.

If even one employee wore a MAGA mask there'd be a MASSIVE uproar within the store itself. Which then would expand beyond the neighborhood and out into the ether. At which point Right Wing media would swoop in and said employee would be on Tucker Carlson by the end of the week.

Let's try to at least act smarter than them, ok?

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[IANAL. I am a clinician and do a lot of consulting and program development around providing inclusive healthcare settings and advising businesses on things like how you can in fact fire someone who claims that their religion requires them to be transphobic, so I follow these things closely.]

Note that the complaint mentions that pride flags have been considered appropriate by Whole Foods, but BLM logos have not. This does in fact sound like Whole Foods has been inconsistent, as these are both messages of positivity and inclusion and both do not refer to any particular political party or candidate.

The courts have been all over the place with this type of issue, but there are a number of reasonable arguments that could be made for BLM and MAGA not being equivalent. A ruling that BLM has to be allowed if pride flags are allowed would not necessarily mean MAGA would also have to be allowed.

One reasonable argument could be that a reasonable person would view MAGA as exclusively promoting a particular party and candidates, so Whole Foods could prohibit it for this reason, while still being required to permit other non-political messages such as BLM and pride.

Another reasonable argument could be that MAGA messages could be viewed by a reasonable person as discriminatory and could lead a reasonable person (particularly one who is Black/trans/disabled/immigrant/etc.) to conclude that the store is not concerned about their safety and well-being. The store could be completely within their rights to not permit MAGA, swastikas, trans flags with a Ø through them, and so forth, while allowing other messages that don't exclude or threaten anyone. Businesses are very much legally allowed to have policies that staff must affirm and include people and may not demean or marginalize them.

I personally think it would be great to have case law explicitly finding that "Black Lives Matter" is not any kind of political, divisive, or controversial statement. Hell, let's find it to be a statement of fact.

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However, can't the arguement be made that "Black Lives Matter" isn't about positivity and inclusion?

While I disagree, a "reasonable" person who may watch too much FOX News could very well be under the impression that BLM is a violent anti-government Leftist mob.

Also, the phrase "Make America Great Again" while very obviously directly tied to a certain goon we all know, it could be argued that the sentiment of making our country better is non-political and possibly "positive" in it's own right.

Again, I'll defer to your experience on the subject but unfortunately I think it may all depend on where the person deciding the case gets their news.

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However, can't the arguement be made that "Black Lives Matter" isn't about positivity and inclusion?

Sure, the argument can be made. It wouldn't be a sound argument, but one can make it.

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And you missed my point.

The country lives in 2 different realities, 3 if you count Dennis Rodman.

So if a jury or judge or mediator happens to enjoy a few hours of AM radio on their daily commutes every day, not only could the arguement be made, it could be accepted and agreed with.

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I understand what you're saying but even if Whole Foods was inconsistent and allowed some political/non-political messages but not others, wouldn't that be legal so long as the policy applied to everyone?

Religious symbols would be more complex. Could they allow a Cross but not a Star of David? I'm guessing not.

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If it wasn't, it wouldn't be necessary to say it. Saying it's non-controversial is just buying in to the anodyne "all lives matter" evasion. The disagreement is not about whether all lives matter, but about whether government authorities, in particular the police, behave as if they all matter equally. When "Black Lives Matter" is asserted on signs, streets, and facemasks, it is an assertion that it is not acceptable for the police to use violence and deadly force more readily, more thoughtlessly, when the only lives at risk are those of black people. This is something that needs to be said, that needs to be fought for. That makes it political speech.

It's always a mistake to attempt to gain the high ground by stating that the truth of your position is self-evident, and thus non-political, beyond the reach of controversy. Do you think that the MAGA-maggots don't think that their opinions are too obviously right to be questioned?

I think trying to force your employer to let you use your position as an employee to disseminate your own political opinions is wrong, even if your cause is right, as it is in this case. I also think that fighting Whole Foods, when there are real enemies that need fighting, is foolish.

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"I also think that fighting _________, when there are real enemies that need fighting, is foolish."

This tends to happen too much on the left. As a liberal it drives me crazy how many things divide us inside of our own party. This is why the scumbag republicans tend to win, we can't get it together and learn to focus on fighting the things that affect us most. There's always some sort of purity test or gatekeeping happening. We are screwed if that continues because the republicans know how to unite, mainly because they're non-thinking idiots who blindly follow their leaders but they still beat us way more often than they should.

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Meant to be tried in the court of public opinion, rather than potentially succeeding in the Federal court system.

Your right to free speech in a private workplace is pretty much non-existent. Amazon/Whole Foods made what most courts would construe to be a reasonable accommodation -- they offered the employees a mask without a political slogan. It's not even protected organizing activity because they apparently weren't trying to form a union.

Team logos, rainbow flags (or pink triangles), and veggies don't qualify as political slogans if there isn't some additional text which conveys a political message. And I really doubt the plaintiffs want the potential precedent this could set: If the court can compel Whole Foods to allow masks or clothing to be worn by employees, that also means that employees with a different political bent could wear MAGA apparel.

You can protest workplace discrimination, but you don't have an unfettered right to do so in your workplace. And your employer can discriminate against you for political speech.

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>Meant to be tried in the court of public opinion, rather than potentially succeeding in the Federal court system.

Welcome to the year 2020. It's been a bitch.

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Politics can be and often enough are a problem in the workplace, generally. There are enough problems in the workplace without politics being added to the mix.

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The lives of human beings aren't "politics".

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n/t

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You're right. Perhaps they should ban employees from working at Whole Foods. No one is allowed to work there. Everything is political, and we can't have that in the workplace. So no workplace.

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so sorry if it was, but that’s the logical conclusion of pretending that all speech is the same

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All Whole Foods is going to do now is make the dress code strict.

Lets be honest these companies only allow Pride stuff because at this point it was benign. I do not recall Pride being the centerpiece of any stores in the 90s or even in the 2000s. BLM is still fairly new to many people and just a year ago it was weird to see any politician even mention the movement. Now it is suddenly all over the place and corporations do not move that fast.

File under MLK is AOK right now but when he was marching in the streets it was still new. Same could be said about many other causes.

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The sports logos and rainbow pins were okay because they counted towards the 15 pieces of flair.

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You want her to express herself?

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a “petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

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a “petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

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