On February 5, a federal court in Massachusetts entered an order dismissing Title VII claims brought against Whole Foods by a number of employees who were disciplined for wearing masks or other items supportive of the Black Lives Matter movement. Beginning in June 2020, Whole Foods began disciplining workers for wearing BLM masks and attire based on its dress code policy, which forbid clothing with visible slogans or messages that are not related to Whole Foods. The purported class of plaintiffs argued that Whole Foods’ enforcement of its policy violated Title VII’s prohibitions against race discrimination and retaliation.

In response to Whole Foods’ motion to dismiss, the court dismissed the vast majority of the plaintiffs’ claims. With respect to the discrimination claim, the court rejected the plaintiffs’ claim and found that Title VII “cannot be read expansively enough to extend its protections to employees who have been disciplined for wearing clothes that violate a company dress code, even if that clothing is associated with individuals of a particular race.” With respect to the retaliation claim, the court held that “wearing BLM attire to protest racism and police violence against Blacks and to show support for Black employees cannot support a Title VII retaliation claim because it is not done to oppose ‘any practice made an unlawful employment practice’ under Title VII.” 

Employers who have adopted dress code policies that prohibit slogans or political messaging should take some comfort from this decision as the court declined to recognize a novel avenue of attack under Title VII. Nevertheless, employers should take great care to avoid selective enforcement of dress code policies, which could invite future challenges.