Earlier this month, a Massachusetts federal court dismissed discrimination and retaliation claims against Whole Foods Market and its parent company Amazon alleging that Whole Foods workers faced discipline and retaliation, including docked pay, cut hours, and even termination, for wearing face masks and other paraphernalia bearing the slogan “Black Lives Matter” at work. Whole Foods responded that the “Black Lives Matter” masks violated the Whole Foods employee dress code, but workers claimed that those violating the dress code to show support for the National Rifle Association or social causes like LGBTQ+ rights did not face similar discipline.
While recognizing that it would have been “more honorable” for Whole Foods and Amazon to “enforce their policies consistently and without regard for the messaging, particularly where the messaging selected for discipline conveys a basic truth,” the court nonetheless held that the workers’ claims should be dismissed because Title VII of the Civil Rights Act of 1964 “does not protect one’s right to associate with a given social cause, even a race-related one, in the workplace.”
Instead, the Court explained that the workplace civil rights law prohibits discrimination based upon an employee’s protected characteristic. The Whole Foods workers’ claims fell short because “no plaintiff alleges that he or she was discriminated against on account of his or her race or that he or she was discriminated against for advocating on behalf of a co-worker who had been subject to discrimination.”
The Massachusetts court ultimately described the workers’ claims as a First Amendment free speech case framed as civil rights case because Massachusetts does not extend First Amendment protections to the private workplace. This may not be the case in Connecticut. Connecticut General Statute 31-51q prohibits any employer, public or private, from discharging or disciplining an employee on account of the exercise by the employee of rights guaranteed by the First Amendment and by similar provisions of the state constitution. Accordingly, while employees may not have a federal right to associate with a particular social cause at work, employers in Connecticut must carefully consider whether any anticipated discipline based on the expression of political or social activism in the workplace may run afoul of Connecticut’s enhanced workplace speech protections.
If you have any questions about employee speech or social activism in the workplace, please contact a member of Carmody’s Labor & Employment Team.