A National Labor Relations Board administrative law judge has ruled in favor of Whole Foods in a case where the company disciplined employees in 2021 for wearing Black Lives Matter apparel in violation of Whole Foods's dress code.
The judge ruled that wearing the apparel was not connected “with their employment or working conditions.” The employees will be able to appeal to the full NLRB where they are likely to find a more sympathetic ear.
Whole Foods tried not to gloat.
“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 attorney for the workers didn't quite see it that way.
"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," said Shannon Liss-Riordan, the attorney representing the workers.
It certainly is a "protected activity."
But it's also rank political speech that divides a workplace instead of uniting it. The company is well within its rights to deny the political speech of employees if it breeds divisiveness, threatens anyone, or creates a toxic workplace.
Whole Foods actually donated to Black Lives Matter on behalf of employees.
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 NLRB has taken a huge swing to the left with the addition of two radical Democrats on the board. However, federal courts have consistently dismissed the employees' legal action against the company.
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.
Race holds a privileged position in the American workplace. But where matters of race become divisive, the company has some rights to step in to maintain a safe, productive workplace.
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