Whole Foods did not violate the law when it punished employees for wearing apparel supporting the Black Lives Matter movement, a federal administrative judge ruled on Wednesday.
The judge for the National Labor Relations Board, Ariel Sotolongo, said Whole Foods had not violated the labor rights of employees in 2020 when it disciplined them for wearing masks, pins and other accessories emblazoned with the “Black Lives Matter” slogan. The judge wrote that wearing the apparel was not connected “with their employment or working conditions.”
The employees will be able to appeal the decision to the labor board.
The case was brought in July 2020 by 14 employees in four states who said the grocery chain had illegally disciplined them while citing its dress code policy. The workers said they had been sent home without pay or fired for wearing apparel with the slogan. Whole Foods denied retaliating against employees.
“Our diverse culture continues to be a source of great pride for Whole Foods Market, and we remain focused on creating both a safe and inclusive workplace for all,” the company said in a statement on Thursday. “We are pleased with the outcome of this case.”
The lawyer representing the workers, Shannon Liss-Riordan, said she was disappointed by the ruling.
“If employees have a good-faith belief that they are taking an action to promote and to improve the terms and conditions of their workplace, that is protected activity,” she said.
One employee at a store in Cambridge, Mass., Savannah Kinzer, testified that she had decided to start wearing apparel with the Black Lives Matter slogan in June 2020 because other stores had sent employees home for wearing similar apparel, according to news articles she had read.
Along with several dozen co-workers, Ms. Kinzer repeatedly wore a Black Lives Matter-themed mask from late June to early July. She and her colleagues were told that they were violating the company’s dress code and were dismissed early from their shifts, without pay. Eventually, she was fired after being late to work.
Many companies embraced the Black Lives Matter movement after the killing of George Floyd by a Minneapolis police officer in May 2020. Amazon, which owns Whole Foods, pledged $10 million to organizations that “bring about social justice and improve the lives of Black and African Americans.” Whole Foods posted on its website that “racism has no place here” and that it supported “the Black community and meaningful change in the world.”
But workers who brought the complaint against the company said that support did not extend to employees who wanted to support the movement, which has sought to draw attention to the police killings of Black people and systemic racism in the workplace, housing, education and other areas.
The judge’s decision was the latest ruling in favor of Whole Foods against employees who said they had been retaliated against for supporting Black Lives Matter. In January, a federal judge dismissed a lawsuit brought by three former employees who said they had been illegally fired for wearing Black Lives Matter masks. And in June 2022, a federal appeals court found that Whole Foods had not violated the Civil Rights Act of 1964 by banning Black Lives Matter apparel.
