Retaliation Suit Involving Black Lives Matter Face Masks in the Workplace
February 16, 2023
In the summer of 2020, three employees were terminated from Whole Foods.
The employees alleged unlawful termination for opposing Whole Foods’ discriminatory discipline of employees wearing Black Lives Matter masks at work. The three employees claimed that their termination was in direct violation of Title VII of the Civil Rights Act of 1964.
In a January 2023 ruling, the Court found that no reasonable jury could conclude that Whole Foods’ reasons for Plaintiffs’ terminations were pretextual and motivated by discriminatory intent.
“… Whole Foods has articulated a legitimate, non-discriminatory business reason for Plaintiffs’ terminations: specifically, Plaintiffs’ repeated violations of Whole Foods’ dress code and attendance policies.”
To survive summary judgment, Plaintiffs were required to present “. . . enough evidence to raise a jury question as to discriminatory intent.” In doing so, Plaintiffs contended that Whole Foods deviated from the normal termination procedures by involving senior executives, and that their repercussion was much harsher than that given to those similarly situated.
The Court found that the Plaintiffs did not provide the requisite evidence to raise a jury question. Given the state of the COVID-19 pandemic in the summer of 2020, the court inferred that a senior executive’s involvement in this matter was not abnormal due to its relativity to the COVID-19 pandemic. Moreover, Plaintiffs were not capable of providing any evidence of employees similarly situated to them receiving lesser repercussions. Therefore, the court ruled in favor of Whole Foods.
If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
Why this matters now. After Charlie Kirk’s killing, workers across sectors posted remarks that mocked or celebrated his death. Employers responded within hours. Some fired workers for policy violations; others suspended them pending review. ABC preempted Jimmy Kimmel Live! after affiliates refused to carry the show and a federal regulator publicly criticized Kimmel’s on-air comments. Events moved quickly, and confusion spread just as fast. The First Amendment restrains government. It does not create a job right to speak without workplace consequences. Private employers retain broad discretion, and public employers face a different constitutional test. Knowing where actual protection begins and ends will help you act quickly and lawfully. What counts as protected speech? · Concerted activity under the National Labor Relations Act. Employees who speak with, or on behalf of, co-workers about pay, scheduling, staffing, safety, or other working conditions engage in “concerted” activity. That protection covers many social-media discussions directed to co-workers or seeking to start group action. It does not cover personal gripes, threats, disclosure of trade secrets, or harassing content. · Anti-retaliation “opposition” rights. Federal and state EEO laws protect employees who oppose or report discrimination in good faith, even if they are ultimately proven wrong on the facts. Crude insults and slurs fall outside that protection; specific, work-focused complaints usually fall inside it. · State off-duty and political-activity laws. Some states protect lawful off-duty conduct or political activity outside work. New York protects many lawful off-duty political and recreational activities. California limits employer control of political activity. Colorado protects broad lawful off-duty conduct, subject to narrow exceptions. Connecticut’s statute extends free-speech protections to private employees on matters of public concern, balanced against legitimate business interests. Multistate employers should map these rules before disciplining off-duty posts. · Public-sector balancing. Government employers must apply the Pickering/Garcetti framework. Speech by a public employee as a citizen on a matter of public concern can receive protection unless it impairs efficiency or disrupts operations; speech made as part of job duties receives no constitutional protection. What does not count as protected speech? · Policy-violating speech. Private employers may discipline speech that breaches social-media, civility, confidentiality, or brand guidelines, so long as the rule and its enforcement do not infringe concerted-activity rights or a state protection. · Harassment and threats. Speech that targets protected classes or creates a hostile environment falls outside any protection and often requires prompt action. · Disclosure of confidential or proprietary information. Revealing nonpublic business information, client data, or trade secrets invites discipline and potential legal remedies. · Speech that predicts or causes disruption. Even in the public sector, officials may discipline speech that reasonably threatens operations, safety, or public trust after applying the required balancing test. How the rules apply to current events. · Kirk-related terminations. Employers dismissed or suspended workers who posted content perceived as celebrating violence or taunting the victim. In private workplaces, the analysis turned on clear policy language, the connection to the employer’s brand, and whether the post involved coworkers or working conditions. Where a post targeted protected classes, anti-harassment duties reinforced the decision. Where a post was unrelated to working conditions and did not fall under state protection, at-will principles typically allowed discipline. Public employers had to apply the constitutional balancing test and document expected disruption before acting. · The Kimmel preemption. ABC removed the show from its schedule after affiliates announced they would not air it and after public criticism from a federal regulator. Two practical lessons follow. First, business partners can force rapid action; affiliate refusals and advertiser pressure often shorten timelines and narrow options. Second, overt regulatory attention raises stakes for content decisions in media and adjacent industries. Employers should plan in advance for partner pushback and regulatory scrutiny, with ready playbooks and internal sign-offs. · Other instructive precedents. Google’s termination of an engineer over a workplace memo survived a federal labor challenge because the content did not qualify as protected concerted activity and risked discriminatory impact. ESPN suspended an anchor for tweets that violated its social-media rules, a reminder that brand and business relationships can justify discipline even when speech occurs off the clock. Franklin Templeton prevailed against a wrongful-termination suit after firing an employee whose viral conduct damaged trust and reputation. Each example turns on the same themes: a clear policy, a documented business rationale, evenhanded enforcement, and—where required—a constitutional or statutory analysis. A clean decision path for employers. When a post or clip surfaces, move in sequence and record the answers. Concerted or not. Does the speech seek to involve coworkers about working conditions or present a group complaint to management? If yes, treat it as potentially protected and consult counsel before acting. Harassment or threats. Does the content target protected classes, include slurs, or threaten harm? If yes, act under anti-harassment and safety policies. Public or private employer. If public, apply the citizen-speech and disruption balancing; if private, proceed to step four. State protections. Do any off-duty or political-activity statutes apply? If yes, analyze the statute’s scope and exceptions. Contracts and past practice. Do CBA provisions, employment agreements, morals clauses, or progressive-discipline rules constrain options, and have you enforced similar cases consistently? Confidentiality and brand risk. Did the content reveal nonpublic information or predict reputational harm with customers, partners, or regulators? If yes, incorporate that rationale into your file. Proportional response. Choose counseling, suspension, or termination based on the conduct, the role, and the risk, and issue a neutral, policy-based communication. Policy and training steps that work. Rewrite social-media, civility, and confidentiality policies with concrete workplace examples. Cross-reference complaint channels and anti-retaliation language. Add explicit savings clauses for NLRA rights and any state-law protections. Train managers to escalate issues to HR and Legal, and to avoid engaging in online arguments. Maintain a short internal script and an external statement template for high-profile events. Consistency across viewpoints reduces legal risk and public blowback. Takeaway. Citizens hold broad speech rights against the state; employees do not gain broad job rights for speech in private workplaces. Your safest course is clear policy, measured triage, and disciplined, neutral enforcement, with special care for concerted activity, anti-harassment duties, state protections, and—if you are a public employer—the constitutional balancing test. When leaders understand what the law actually protects, they act faster and with less risk.
