This is a story about a clash of values and law over political speech and when it is or isn’t legally protected.
The arena for this battle is a Massachusetts federal court, where a proposed class of thousands Whole Foods Market employees are challenging the power of their employer, a national grocery chain owned by the richest man in the world, Jeff Bezos.
Three foundational issues are at stake:
- Employer versus employee rights,
- The definition of discrimination, and
- The power and reach of reputation.
The first, as defined both by courts and laws, balances the rights of employers versus the rights of employees.
The second involves a growing and evolving area of the law that addresses concepts of fairness and equal treatment, particularly as they affect minority groups.
The third lies within the realm of the court of public opinion.
In mid-July, more than a dozen Whole Foods employees in Massachusetts, New Hampshire, California and Washington filed a class action federal lawsuit alleging that the company had discriminated against them by disciplining them for wearing masks and apparel that bore symbols and words supporting the Black Lives Matter movement.
The employees ask for an initial court-imposed injunction that would bar the company from continuing such disciplinary actions and would reverse any prior disciplinary actions, including firings, taken against employees.
The lawsuit acknowledges that Whole Foods has a dress code policy that prohibits the wearing of any apparel with “visible slogans, messages, logos or advertising that are not company-related.”
However, it alleges that Whole Foods does not uniformly enforce this policy, citing the company’s past tolerance of employees wearing Pride flags, local sports team logos and even political messages while working.
Employees say that when they began wearing BLM-labeled gear, the company moved to enforce its dress code and take disciplinary actions against employees who refused to remove their BLM masks and apparel.
Some employees were sent home, while others were docked pay, forced to take “corrective action” training, or given “disciplinary points” that could lead to termination, according to the lawsuit.
One employee, Savannah Kinzer, says she was fired “in retaliation for wearing a Black Lives Matter mask, opposing racism in the workplace, and organizing her coworkers to wear the masks and protest Whole Foods’ discriminatory and retaliatory policy.” She wants her job back.
The lawsuit alleges that Whole Foods’ disciplinary actions constituted racial discrimination and “unlawful retaliation” that violated federal law.
Specifically, the lawsuit claims these actions violated anti-discrimination provisions of the Civil Rights Act of 1964 and Equal Employment Opportunity Commission policies that constitute an unfair labor practice as defined by the National Labor Relations Board.
When queried by The Legal Examiner, company spokesperson Rebeka Mora offered an official company statement that said “it is critical to clarify that no Team Members have been terminated for wearing Black Lives Matter face masks or apparel.”
The company statement said Kinzer “was separated from the company for repeatedly violating our Time & Attendance policy by not working her assigned shifts, reporting late for work multiple times. … It is simply untrue that she was separated from the company for wearing a Black Lives Matter face mask.”
Yet, according to the lawsuit, Kinzer was fired and escorted out of her workplace within an hour of informing a superior that she had joined a lawsuit against the company.
The lawsuit also seeks certification of a class action that would apply to all Whole Foods employees, making them eligible for any compensatory, emotional and punitive damages awarded at trial or through a settlement.
Other legal and moral issues
Political expression in the workplace has always been a fraught issue. Legally, there is a sharp dividing line between public and private employees. The Constitution under the First and Fourth Amendments and derivative federal laws protect public employee political speech rights providing that speech does not interfere with job duties or create conflicts.
This right for public employees was ratified in a 1968 U.S. Supreme Court decision that declared that employees do not surrender their First Amendment rights when working for a public employer.
The Constitution does not directly address the rights of private employees, as most of its provisions regulate governmental actions, not private actions. However, Congress and states have passed laws regulating the actions of private employers, particularly barring employer discrimination for conditions beyond employee control such as race, age, sex and disability.
Laws regulating political speech and activities differ from state to state, either allowing or barring private employer retaliation for out-of-workplace political activity, according to the National Law Review. Such activity at the workplace is often a different matter and usually is subject to rules set by the employer.
The court of public opinion
Actions addressing the BLM controversy that have been taken by Amazon, Whole Foods’ parent company, are very different from those that prompted the lawsuit against the grocery chain.
“The inequitable and brutal treatment of Black and African Americans is unacceptable,” Amazon posted in its blog on June 9, 2020 as it announced a $10 million donation “to organizations that are working to bring about social justice and improve the lives of Black and African Americans.”
A month later, that amount was increased by more than $17 million when the company matched employee donations for a total of $27 million given to a dozen organizations, including the ACLU, the NAACP, the Brennan Center for Justice, the National Urban League and the Equal Justice Initiative.
Whole Foods has yet to formally respond to the lawsuit nor has it addressed the issue on its corporate website or its public relations Twitter page. It does describe itself on its website as a “purpose-driven company” that is a “world-changer” and cares about “our communities.”
Meanwhile, Kinzer started a Go Fund Me web page, which has collected more than $13,000 toward a goal of $20,000. She says the money will partially replace employee pay lost during BLM protests.
“After the deaths of George Floyd and Breonna Taylor, we began wearing “Black Lives Matter” masks to work, following the lead of other Whole Foods employees elsewhere” Kinzer says. “Inevitably, however, our store management told us to take them off, told us it was against company policy, told us not to make political statements. No conversation, no dialogue. This was, and is, obviously unacceptable to us.”
Whole Foods “has always preached values of togetherness, family, and community,” Kinzer said, calling it “ridiculous” that the company would bar its employees from honoring the BLM movement.
“Unfortunately, a number of coworkers who strongly believe in the BLM movement still remain afraid” to wear them. “They are afraid they’ll lose their pay and, possibly, their jobs,” Kinzer said.
She points to social media postings supporting the Whole Foods employee protest and the support received by prominent individuals and groups, including Senator Elizabeth Warren and the mayor and City Council of Cambridge, MA.
“We are on the right side of history,” Kinzer said. “Other corporations, like Starbucks, responded quickly to employee pressure and now sell Black Lives Matter attire. We want to make sure Whole Foods, the company we love and believe in, not only hears our voices, but respects them and listens … This is a fight for human rights.”
The first hearing in the case is scheduled for Aug. 18.