By Brian Dowling

Law360 (July 20, 2020, 2:02 PM EDT) -- Whole Foods Market Inc. has been violating workers' civil rights by selectively enforcing its dress code and disciplining employees who wear face masks emblazoned with "Black Lives Matter," according to a proposed class action filed Monday in Massachusetts federal court.

The lawsuit — filed by 14 grocery workers on behalf of all Whole Foods employees subject to the alleged policy — claims the chain and its parent company Amazon.com Inc. are offering only lip service to the nationwide protest movement against anti-Black racism and police brutality by posting supportive statements on their websites.

But when workers began wearing "Black Lives Matter" face masks during the COVID-19 pandemic, Whole Foods started enforcing its oft-ignored dress code, the suit says. The company sent workers home early, issued disciplinary "points" and even fired one worker who organized the mask-wearing, according to the complaint.

"Whole Foods' policy of not allowing its employees to wear Black Lives Matter masks is discriminatory," the workers said, "both against Black employees who are participating in and leading the employee protest, and against other employees who are associating with and advocating for Black Whole Foods employees ... by wearing the masks and showing support for their Black co-workers."

The employees — who work at Whole Foods stores in Cambridge, Massachusetts; Bedford, New Hampshire; Berkeley, California; and Seattle, Washington — say the company's selective enforcement of its dress code policy and disparate discipline handed out to workers violate the anti-workplace discrimination provisions in Title VII of the Civil Rights Act of 1964.

The group wants the federal court in Boston to force Whole Foods to end its policy regarding the masks. The plaintiffs also want the company to erase any record of disciplinary measures from employees punished for the mask-wearing, offer back pay for workers sent home early and reinstate the employee who was allegedly terminated for organizing the effort.

The workers say Whole Foods' policy on the masks is discriminatory because the company has long allowed logos and political statements, including those in support of LGBTQ rights, on employee apparel despite the dress code's blanket prohibition on such messages. Whole Foods has chosen to selectively apply the dress code to the Black Lives Matter messaging on the masks, the workers said.

Whole Foods spokeswoman Rachel Malish said the company is reviewing the lawsuit and the workers' injunction request, but would not comment on pending litigation.

The company said it did not terminate the worker organizing the Black Lives Matter masks due to her apparel. Instead, the company said the worker was fired for violating "time and attendance" policies.

"It is simply untrue that she was separated from the company for wearing a Black Lives Matter face mask. As an employer, we must uphold our policies in an equitable and consistent manner," the company said in a statement.

The workers' attorney Shannon Liss-Riordan called Whole Foods' actions "not only illegal but shameful."

"These essential workers have been asked to put their health at risk during this pandemic, and they have done so," Liss-Riordan said in a statement. "Whole Foods' decision to selectively and arbitrarily enforce its 'dress code' to specifically suppress the message that Black Lives Matter paints a picture about what the company values, and that picture is not pretty."

The workers are represented by Shannon Liss-Riordan and Anastasia Doherty of Lichten & Liss-Riordan PC.

Counsel information for Whole Foods was not immediately available Monday.

The case is Frith v. Whole Foods Market Inc., case number 1:20-cv-11358, in the U.S. District Court for the District of Massachusetts.

--Editing by Stephen Berg.

Update: This story has been updated with additional information from the company's statement.

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