Along with the pandemic came a whole slew of problems we weren’t ever really prepared for: lines to get into grocery stores, people doing pushups outside their shut down gyms, and the thousands of issues that could come up along with the simple concept of wearing a mask.  Along with ensuring that employees were, in fact, wearing a mask, employers needed to make sure it was being worn properly, that it was the proper type of mask, and that the mask was not being used to make a statement inconsistent with employer policy.

In Kinzer v. Whole Foods Market, Inc., the plaintiffs were terminated after they allegedly opposed Whole Foods’s allegedly discriminatory discipline of them for wearing “Black Lives Matter” masks while working in the market.  The impetus of the complaint was that prior to the murder of George Floyd in May of 2020 and the spread of the “Black Lives Matter” movement, Whole Foods began “cracking down” on non-Whole Foods-related paraphernalia.  Each time an employee wore the mask, they were sent home for a dress code violation, and were eventually terminated for attendance issues.

The class of plaintiffs sued for discrimination, retaliation, and some sued for “associational discrimination,” in that adverse action was taken against them based on its disapproval of the employee’s relationship with a third party on the basis of a protected characteristic.  The claims failed on summary judgment.

In its decision, the court found that the plaintiffs engaged in protected conduct by filing complaints with the EEOC and NLRB.  In addition, the court found that Title VII protects a broader category of “oppositional activity,” when an employee opposes any practice made an unlawful employment practice by Title VII.  This includes the following:

• Responding to an employer’s inquiries about inappropriate behavior;
• Writing letters protecting an employer’s allegedly unlawful actions; or
• Picketing and boycotting an employer.

The court found that by continuing to wear the masks and complaining to management about their right to wear the masks that they were participating in oppositional activity.

The court found, however, that the plaintiffs failed to show any form of pretextual reason for their termination.  The court found it to be “logical that Whole Foods would have a different perspective on enforcing its dress code policy in the era of employee mask-wearing.”  The court found that Whole Foods’s desire to not allow the “mass expression of a controversial message by employees in their stores” was nondiscriminatory.

In our ever-changing world of work, the challenges to employee discipline are always growing.  If you, or your organization need assistance in responding to employee complaints or policy violations, contact Wiley Reber Law, for legal advice and representation that works.