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Can My Employer Fire Me For Wearing Black Lives Matter Gear?

by | Aug 29, 2022 | Employment Discrimination, Employment Law, Federal Law Update, Race Discrimination, Retaliation, Wrongful Termination |

In recent years, there has been a surge in the support of movements that seek to highlight and oppose racism and various forms of race discrimination. One such movement is Black Lives Matter (“BLM”). The vast majority of BLM supporters promote the cause by wearing clothing and other items that display various BLM slogans. The widespread display has sparked controversy among those who don’t share a similar viewpoint. This heated debate has materialized in many workplaces throughout the country. Unfortunately, rather than take a pronounced stance against racism and discrimination, a large number of employers have found it easier to just prohibit employees from wearing any such racial equity paraphernalia in the workplace. While alleviating the instant problem, this show of “neutrality” in the workplace raises a question—where does keeping the peace end and racial discrimination begin? (Best Law Read: Disparate Effects Of Neutral Employment Policies).

One recent case that attempted to address this question is Frith v. Whole Foods Market, 38 F.4th 263 (1st Cir. Jun. 28, 2022). The Frith matter involved a mixed group of black, brown, and white employees from Amazon and Amazon-owned Whole Foods Market, who had been sent home without pay and/or disciplined in other ways for refusing to remove their “Black Lives Matter” face masks while at work.

The employees wore the masks as a show of solidarity and support of black employees. Amazon and Whole Foods had publicly supported the BLM in the past, and Amazon owner Jeff Bezos frequently posted social media messages that furthered this support. Surprisingly, rather than allow the display of support for BLM, management at both companies chose to enforce their “previously unenforced” dress code policy that prohibited employees from wearing clothing “with visible slogans, messages, logos, or advertising that are not company-related.” However, many employees claimed this policy was only being enforced against employees that were wearing “Black Lives Matter” face masks. Meanwhile, employees alleged there were multiple examples of employees who were not sent home without pay or otherwise disciplined for wearing apparel that had logos for organizations such as local sports teams and the National Rifle Association, as well as wearing symbols that supported LGBTQ Pride, anarchists, and the phrase “Lock Him Up” (referring to former President Trump).

The difference in treatment between the employees that were disciplined for wearing BLM face masks and employees that were allowed to wear other logos and slogans appeared to fit the definition of “discrimination because of race.” (Best Law Read: Racial Discrimination FAQs) Therefore, the affected employees brought a class-action suit against Amazon and Whole Foods, claiming race-based discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964. (Best Law Read: What Laws Protect Employees From Race Discrimination?; Does Title VII Prohibit All Discrimination?; Race Based Shift Change Violates Title VII). Title VII prohibits employment discrimination based on race, color, religion, gender/sex (including pregnancy and LGBTQ+ status), and national origin. In order to bring a claim of race discrimination under Title VII, an employee must show that he or she was treated differently from similarly situated employees of a different race.

In July 2020, the Frith group brought suit against Amazon and Whole Foods in federal court. The case was heard in the District Court of Massachusetts, who granted a motion to dismiss by the Defendants. The District Court reasoned that the employees failed to state a viable claim of discrimination because no plaintiff had alleged that he or she was discriminated against on account of his or her race. Additionally, the employees’ claim for retaliation failed because the complaint did not provide enough evidence “to support the inference” that any individual employee had been disciplined for wearing a BLM mask in opposition to the dress code policy. The employees appealed the District Court’s decision to the United States Court of Appeals, First Circuit.

The United States Court of Appeals for the First Circuit used the decision in Bostock v. Clayton County, 140 S. Ct. 1731, 207 L. Ed.2d 218 (2020) to analyze the employees’ claim of racial discrimination. (Best Law Read: What Does Bostock V. Clayton County Mean To The LGBTQ Community?). The Court summarized the employees’ claims as alleging the employer’s enforcement of their dress code policy was discrimination against black employees because of their race, and against non-black employees because of their advocacy and/or association with their black coworkers. The Court also held that employees’ discrimination case had not necessarily been debunked simply because the employer had disciplined both black and non-black employees equally for wearing BLM masks. If anything, they believed that if Defendants had disciplined black employees based on their race and non-black employees based on their association, this could actually be construed as “doubling down” on discrimination.

However, the First Circuit ultimately chose to upheld the trial court’s decision because they determined that the employees’ allegations were merely an “inference” of discrimination. The Court of Appeal’s rationale was based on a belief that employer’s enforcement of the policy could equally have been done simply to prohibit the mass display of any controversial message in it stores. The employees had not clearly demonstrated in their allegations that employer’s application of the dress code policy was done because of race rather than to prevent widespread controversy in their stores.

Furthermore, the employees’ complaint had failed to make two key claims: (1) that other employees wore masks that violated the dress code after the employer began to enforce the dress code, and (2) that other employees that had violated the dress code policy after the employer began to enforce it had not been disciplined. Without evidence of these two factors, the Court determined that employees had failed to prove discrimination had actually occurred.

The trial court’s dismissal of the employees’ retaliation claim was also upheld. The Court held that there was no retaliation because the continued enforcement of the dress code policy and resulting disciplinary actions taken against employees was not distinguishable from the employer’s preexisting and ongoing discipline of employees. In short, the employees could not prove retaliation because the action they claimed was retaliatory because of their opposition to the dress code was no different from the action the employer initially took to enforce the dress code.

While this was a loss for these employees, the decision provides our race discrimination lawyers with a great roadmap has to how to better prosecute these types of claims moving forward. This is why it is critical to hire attorneys who are focused on employment law matters and staying up to date on the most recent legal decisions.

Do I have a claim for racial discrimination and/or retaliation?

Best Employment Lawyer Answer: Our experienced attorneys are qualified to weigh a variety of factors to determine if you have a viable claim for racial discrimination and/or retaliation. Don’t rely on headlines or news reports to make that decision, call the right attorney to schedule a free and confidential consultation today! (Read: What is the Spitz No Fee Guarantee?) You can also submit a confidential submission on this website. Our employment law lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati, and Raleigh focus only on representing employees like you. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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