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3 Takeaways From Whole Foods' Win In BLM Mask Case

June 29, 2022

The First Circuit shut down a race discrimination lawsuit Tuesday challenging Whole Foods’ workplace ban on Black Lives Matter masks, a ruling experts say sheds much-needed light on the circuit’s stance on several emerging legal arenas.

An appellate panel threw out the Whole Foods workers’ discrimination claims over discipline they faced for wearing Black Lives Matter face masks to work, finding their race bias claims were too speculative.

However, in contrast to the trial court’s conclusion in the case, the panel said a company can step out of bounds under Title VII, a federal anti-discrimination law, if it takes disciplinary action against staffers for showing support for teammates in a protected category.

The ruling marks the first time the First Circuit recognized an associational discrimination claim under Title VII, one of several aspects of Tuesday’s decision that employment attorneys said made it noteworthy.

“This is going to be one of those cases where regardless of the outcome, plaintiffs attorneys will find a lot of language that is very helpful, like an expansive understanding of what can constitute a discrimination claim,” said Sherin and Lodgen partner David I. Brody, who represents individuals in employment cases.

Here are three takeaways for employers and workers from the First Circuit’s decision.

First Circuit Adopts Associational Discrimination

Tuesday’s ruling represents the first time that the First Circuit — which covers Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island — acknowledged that workers can sue their employers using a theory of associational discrimination under Title VII.

When bringing an associational discrimination claim, a worker is alleging that they faced discrimination at work — through, for example, harassment, a demotion or a termination — based on their connection to someone else. The typical example offered is when a white staffer is fired because their spouse is Black.

This type of claim is already recognized by several other circuits, including the Third, Fifth, Sixth, Seventh and Eleventh circuits, and experts said it’s a welcome change that the First Circuit has joined that group.

“It was nice to see the First Circuit address on point the associational discrimination claims,” Brody said. “It was nice to see that recognized in a full-throated way.”

Clark Hill PLC member Molly DiBianca, who represents employers in discrimination matters and other disputes, added that the panel took a worker-friendly view of associational discrimination.

The First Circuit found that the Whole Foods workers, including Black and non-Black employees, had a “technically viable” allegation of bias when they said that they were disciplined for donning Black Lives Matter masks at work in support of their Black co-workers.

While the panel ultimately found that Whole Foods likely had non-race-based reasons for penalizing the workers for wearing the masks, it found that an employee can bring a Title VII claim “rooted in an employer’s disapproval of its non-Black employees’ support of Black coworkers.”

DiBianca said this interpretation widens the avenue for workers to bring an associational discrimination allegation.

“They are expanding the concept outside just the scope of interracial marriage,” DiBianca said. “You can have an associational claim by supporting others.”

Bostock As Applied to Race Bias Cases

Tied into that analysis, the First Circuit spilled ink discussing how the U.S. Supreme Court‘s landmark ruling two years ago in Bostock v. Clayton County  informed its decision, a facet of Tuesday’s opinion that experts welcomed.

“Whether or not people agree with this court’s analysis, it’s always helpful to get additional guidance on how courts will interpret the import of Bostock,” said Segal Roitman LLP employee-side attorney Gavriela M. Bogin-Farber.

In the watershed Bostock ruling, the justices made clear that Title VII prohibits discrimination on the basis of gender identity and sexual orientation. The law’s ban on bias “because of … sex” covers mistreatment of employees because they’re gay or transgender, the high court held.

The First Circuit said Bostock makes clear that a discrimination claim has to relate back to the protected characteristic of the plaintiff, and that an associational discrimination claim clears this hurdle because it’s tethered to difference between the plaintiff and that of the person they’re linked to.

The panel also cited Bostock when it pushed back on Whole Foods’ defense. The grocer had insisted that no race bias was in play because it had enforced its mask policy evenly across its workforce, affecting the Black and non-Black workers alike. Whole Foods’ dress code policy, which the workers said went unenforced until they started wearing Black Lives Matter masks into work, bars employees from wearing clothing with slogans, messages, logos or advertising that aren’t company-related.

However, the panel pointed to language in Bostock stating that, “the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

Therefore, in the context of race discrimination, the panel said a company doesn’t cancel out its liability if it discriminates against a Black employee based on their race and against a non-Black employee based on their status as non-Black person who is associating with someone who is Black.

That employer “‘doubles rather than eliminates Title VII liability,'” the panel concluded, again quoting Bostock.

“It was a beautiful articulation of what the Supreme Court put forward in Bostock and applying it outside of other contexts, this time to race,” Brody said.

Advocacy Bias as a No-Go

While the First Circuit endorsed the associational discrimination theory in Tuesday’s ruling, the panel explicitly rejected the notion that a worker can sue under Title VII based on their advocacy on behalf of others in a protected category.

The so-called advocacy discrimination theory, which the Sixth Circuit recognized in a 2009 discrimination case against Whirlpool Corp., isn’t tethered to any characteristics of the plaintiff, just to those the person is advocating for, so it doesn’t fly under Bostock, the First Circuit explained.

“Title VII’s language, as discussed in Bostock, forecloses such a theory, which essentially replaces the textual ‘because of such individual’s race’ with the atextual ‘because of such individual’s advocacy for protected individuals,'” the panel said Tuesday.

The Sixth Circuit’s blessing of this kind of claim pushes the concept of associational discrimination “beyond the bounds of Title VII,” the First Circuit concluded.

Bogin-Farber of Segal Roitman said this analysis offers companies and workers a broader understanding of the circuit’s stance on associational discrimination and its boundaries.

“The court made of point of talking about the Sixth Circuit case that tried to expand associational discrimination to advocacy on behalf of a protected class,” Bogin-Farber said. “Now we know that the First Circuit does not see that as a viable theory of discrimination, that there is a line.”

–Additional reporting by Hailey Konnath, Brian Dowling and Braden Campbell. Editing by Abbie Sarfo.

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