The scenario: Shortly after the death of George Floyd prompted nationwide protests against racial injustice, a group of employees began wearing masks in support of the Black Lives Matter (BLM) cause.
But it wasn’t just Black crew members who wore the gear; many white and Hispanic staffers did too.
Managers thought that the workers were violating the employer’s dress code policy, which forbade people from wearing clothing with slogans and messages, so those with the BLM masks were sent home for the day. They also accumulated disciplinary points, which could eventually lead to dismissal.
Legal challenge: A diverse group of workers sued for race discrimination, arguing that the employer enforced its dress code policy unevenly. For instance, workers hadn’t been cited for wearing masks in support of the National Rifle Association and the LGBTQ+ cause.
The ruling: The employer won. While the court chastised the company for the inconsistent enforcement of its dress code policy, the judge decided that disciplining workers for wearing BLM masks didn’t amount to race bias.
Here’s why: It wasn’t just Black workers who were disciplined; people of all races were punished, so there was no evidence of racial animus. At worst, said the court, the employer was selectively enforcing its dress code policy to suppress certain kinds of speech in the workplace, which might have violated the First Amendment but didn’t amount to race bias.
The skinny: Don’t forget the value of consistent discipline. The employer here could’ve avoided a costly lawsuit if it had an established track record of consistently enforcing its dress code policy.
Cite: Frith et al. v. Whole Foods Market, U.S. District Court, D. Massachusetts, No. 20-cv-11358-ADB, 2/5/21.
(From the March 5, 2021, issue of HR Manager’s Legal Alert for Supervisors. To start a no-obligation trial subscription to the publication right now, please click here.)