Whole Foods Market is not budging on its Black Lives Matter mask and apparel ban; instead the grocery chain is hitting back with the Constitution.
In December 2021, the National Labor Relations Board filed a formal complaint against the Amazon subsidiary’s dress code policy that prohibits employees from wearing attire with messaging, “slogan, logo or advertising” unrelated to the retailer.
Whole Foods believes the complaint is the NLRB’s attempt at the “General Counsel [seeking] to compel employer speech by WFM in violation of the WFM’s rights under the First Amendment…By singling out the phrase ‘Black Lives Matter’ the General Counsel is impermissibly favoring, and requiring that WFM favor, certain expressions of political speech over others in its retail grocery stores.”
The retailer responded by filing a response listing out numerous rebuttals and denials to allegations made against it. Those included denying that employees from several stores across states were sent home, disciplined or fired for refusing to remove BLM face masks and shirts dating back to 2020.
It further argued that “employees do not have protected right under Section 7 of the Act to display the phrase ‘Black Lives Matter’ or ‘BLM’ in the workplace. WFM maintains a neutral dress code that is lawful under extant Board law.”
A spokesperson for the grocer released the following statement:
“Our dress code policy is designed to ensure we are giving Team Members a workplace and customers a shopping experience focused entirely on excellent service and high-quality food. We do not believe we should compromise that experience by introducing any messages on uniforms, regardless of the content, that shift the focus away from our mission.”
Whole Foods says that not allowing apparel, such as BLM paraphernalia, is a direct response to the social climate in which the movement was birthed. The company stated employees wearing BLM apparel was “an exercise in political and/or social justice speech through which the alleged discriminates and Charging Parties sought to support societal changes outside the workplace.”
With no immediate resolution in sight, the issue is expected to head to trial in March.
NLRB is not alone in its mission. Whole Foods employees attempted to launch a nationwide class complaint against the retailer for its stance on BLM apparel.
Twenty-seven employees were listed as plaintiffs, each claiming to have experienced some level of discrimination or discrimination for wearing BLM apparel, or claiming to have witnessed supervisors allow other politically charged apparel to be worn. The retailer said the latter of the claims was especially unfounded.
The judge ultimately ruled in favor of the grocer, saying that it did not violate Title VII of the federal Civil Rights Act of 1964. “At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace,” she wrote. “However unappealing that might be, it is not conduct made unlawful by Title VII.”
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