Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Class Action newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (September 9, 2020, 11:21 PM EDT) -- Amazon.com Inc. asked a Massachusetts federal court on Wednesday to let it out of a suit claiming the online retail behemoth and its grocery unit Whole Foods Market Inc. unlawfully disciplined employees who wear Black Lives Matter face masks.
Amazon argued that its employee Alice Tisme, who was allegedly sent home for wearing a Black Lives Matter mask, didn't have standing to sue because she hadn't first gone through the U.S. Equal Employment Opportunity Commission.
"She has not even commenced the administrative process, let alone received a letter from the EEOC authorizing her to file a lawsuit," Amazon said.
Amazon also argued that Tisme's racial discrimination and retaliation claims don't hold water because the Seattle-based company was enforcing a dress code for all employees rather than singling out certain workers because of their race.
Whole Foods made similar arguments in a bid last month to toss the claims of the other 27 named plaintiffs in the proposed class action.
The workers responded to Whole Foods' dismissal bid last month by arguing that "Whole Foods has selectively enforced the dress code to target and suppress BLM messaging in the workplace, thereby discriminating against its Black employees and employees of other races who associate with them and advocate for them."
The proposed class action, filed in July, argues that Whole Foods' policy has been enforced inconsistently. The workers say 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.
The company sent workers home early for wearing Black Lives Matter masks, issued disciplinary "points" and even fired one worker who organized the mask-wearing, according to the initial complaint, which was later amended to add Whole Foods' parent company Amazon as a defendant.
In addition to revoking the dress code policy, the suit asks the court to order Whole Foods to erase any record of disciplinary measures from employees punished for mask-wearing, offer back pay for workers sent home early and reinstate the employee who was allegedly terminated for organizing the effort.
The suit was filed by Shannon Liss-Riordan of Lichten & Liss-Riordan PC, who has filed dozens of class action lawsuits against big companies and entities including Uber, Lyft, FedEx, IBM, Michael Bloomberg and the city of Boston.
Liss-Riordan told Law360 on Wednesday that the company's alleged targeting of workers supporting Black Lives Matter stands in contrast to Amazon owner Jeff Bezos' public support for the movement.
"Neither Whole Foods nor Amazon really enforced a dress code policy until their employees started putting on Black Lives Matter masks," she said. "And their decision to enforce a dress code policy to prevent employees from speaking out against racism in the workplace is discriminatory and retaliatory."
Counsel for Amazon and Whole Foods didn't respond on Wednesday to requests for comment.
The workers are represented by Shannon Liss-Riordan and Anastasia Doherty of Lichten & Liss-Riordan PC.
Amazon and Whole Foods are represented by Sarah J. Butson, Anne Marie Estevez, Michael L. Banks, Julia S. Sturniolo and Terry D. Johnson of Morgan Lewis & Bockius LLP.
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.
--Additional reporting by Chris Villani. Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
