Whole Foods win shows bosses can ban "Black Lives Matter" masks, and more

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Workers of the South Lake Union Whole Foods protest against store management not allowing workers to wear Black Lives Matter apparel in the aftermath of the death in Minneapolis police custody of George Floyd, in Seattle, Washington, U.S. June 25, 2020. REUTERS/Lindsey Wasson

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(Reuters) - An appeals court ruling last month that said Whole Foods and its parent Amazon.com Inc can’t be sued for disciplining workers who wore “Black Lives Matter” face masks demonstrates the precarious nature of Americans’ rights on the job.

The June 28 decision by the 1st U.S. Circuit Court of Appeals further restricts employees’ ability to change their working conditions at a time when U.S. workplaces have become a locus of divisive cultural battles and disagreements over some Americans’ basic rights.

For instance, days before the ruling, Meta Platforms Inc, which owns Facebook and Instagram, moved to limit internal discussion of the U.S. Supreme Court's decision to eliminate the constitutional right to an abortion. A spokesperson for Meta on Friday declined comment on the company's internal policies.

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The Whole Foods case was brought in July 2020 by a multi-racial group of more than two dozen employees who claimed the company violated Title VII of the 1964 Civil Rights Act, which bars racial discrimination in the workplace. The statue also prohibits employers from retaliating against workers who oppose bias.

The lawsuit, a proposed nationwide class action, alleged that Whole Foods selectively enforced a dress code that bans visible messages and logos that aren’t company-related. The workers said the policy had gone largely unenforced before the widespread racial justice protests that followed the murder of George Floyd, and that employees had been permitted to wear apparel featuring Pride flag logos, for example.

The group said their Black Lives Matter masks were a show of solidarity with the broader racial-justice movement, as well as a protest against perceived racial bias at Whole Foods. They noted that the company itself had made multiple public statements of support for the BLM movement.

Whole Foods has maintained that it does not discriminate on the basis of race or retaliate against employees who oppose any such discrimination. Neither Whole Foods' spokespeople nor the company's lawyers responded to requests for comment.

Both the Massachusetts district court and the First Circuit– using distinct legal analyses--ultimately concluded that it’s so implausible that Whole Foods discriminated that the case should be dismissed outright. The case did not get to discovery, the stage where parties are compelled to produce documents and other evidence.

In dismissing virtually all the claims in February of last year, Judge Allison Burroughs said there couldn’t possibly have been intentional discrimination because Whole Foods disciplined both Black and non-Black employees. She added that a workplace retaliation claim can’t be based on wearing BLM attire because “it is not done to oppose” any specific discriminatory employment practice.

On appeal, the First Circuit affirmed but on somewhat different grounds. A 3-0 panel concluded that discrimination was implausible because there was an "obvious alternative explanation": Whole Foods “did not want to allow the mass expression of a controversial message by employees in their stores,” Judge Kermit Lipez wrote.

That was an argument that Whole Foods hadn't really made, said Shannon Liss-Riordan, a lawyer for the employees. Liss-Riordan said she was disappointed that the First Circuit "felt it necessary to wade so deeply into issues that should be in the province of the jury."

Before 2007, the Federal Rules of Civil Procedure required that plaintiffs filing discrimination and other civil lawsuits file a "short and plain statement" laying out an alleged illegal act. That generally would suffice to get to discovery.

But Supreme Court rulings in 2007 and 2009 established “plausibility pleading” (Bell Atlantic v. Twombly and Ashcoft v. Iqbal). In short, judges scrutinize complaints more closely and dismiss them if they seem implausible based on “judicial experience and common sense.”

Following those rulings, "dismissals of employment discrimination and civil rights cases have risen significantly," according to a 2015 study by Alexander Reinert, law professor at the Benjamin N. Cardozo School of Law.

Individuals were more likely to have cases dismissed, while corporate and governmental plaintiffs didn't see a change in dismissal rates, according to Reinert's study.

Consider how the standard applied in the workers’ case.

On appeal, the First Circuit explicitly discarded the reasoning behind the lower court’s plausibility determination.

The “fact that both Black and non-Black employees were disciplined” doesn’t make a discrimination claim implausible, Lipez wrote. An employer “doubles rather than eliminates Title VII liability,” if it discriminates against some employees based on race and others based on their association with minorities, the court said.

That holding, a small silver lining for workers, marked the first time the First Circuit explicitly recognized that Title VII discrimination claims based on an "association" with protected minority groups are viable. Other courts have allowed associational discrimination claims as well as claims based on advocacy for minority workers.

Still, the First Circuit concluded that “common sense” does not suggest that the company discriminated, and decided the case based on its “obvious alternative explanation."

Indeed, the Supreme Court’s pleading standards basically invite judges to interpose their own subjective views and to do so even before evidence is collected.

It’s perhaps not so surprising, then, that most discrimination claims are judged too implausible at the very outset.

The court's standards often undermine the intent and spirit of anti-bias laws and should be revisited or amended through legislation.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com