Whole Foods Market employees have vowed to continue to seek legal action against the supermarket chain after a federal judge Friday dismissed the bulk of their claims.
“It’s not over,” former Whole Foods employee Savannah Kinzer told GBH News. “Maybe the protests have subsided … but we have to keep fighting for this.”
Last July, the Whole Foods in Cambridge sent seven employees home for wearing masks with the slogan “Black Lives Matter” on them. In response, employees began to stage walk-outs and protests at Whole Foods locations across the country.
The company responded by disciplining employees, terminating positions and withholding pay, according to the complaint. “Whole Foods’ discipline of these employees constitutes retaliation against the employees for engaging in protected activity,” the complaint read, “namely opposing discrimination and racism in the workplace.”
A spokesperson for Whole Foods says the company agrees with the court’s decision, and remains “dedicated to ensuring our team members feel safe and free from discrimination and retaliation at Whole Foods Market,” according to a statement sent to GBH News.
Kinzer, who coordinated several protests at the Cambridge location on River Street, was fired and escorted out of the store in late July, just hours after informing her manager that she had filed a charge of discrimination with retaliation with the Equal Employment Opportunity Commission and a charge of unfair labor practices with the National Labor Relations Board.
Kinzer’s retaliation claim was the only element of the lawsuit that U.S. District Judge Allison Burroughs did not dismiss in her Friday ruling. Kinzer says she was surprised.
“All of my other coworkers were just as involved and they, too, were retaliated against, they were made to leave,” Kinzer told GBH News. “They lost pay because of this, and some were fired as well. If I was fired for wearing the mask and my other coworkers were fired for wearing the mask, then I see no reason for this to just be me. We're all in this together.”
Because Whole Foods and its parent company, Amazon, did not single out employees based on race, Burroughs ruled, the companies could not be convicted of racial discrimination.
"At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace," she wrote. "However unappealing that might be, it is not conduct made unlawful by Title VII."
Burroughs simply “didn’t get our argument right,” says Shannon Liss-Riordan, the attorney representing 28 current and former employees named in the lawsuit.
“All of the employees involved in this protest were speaking out on behalf of Black workers at Whole Foods, and they were engaged in protected activity,” Liss-Riordan told GBH News. “Whole Foods discriminated against these employees and retaliated against them for engaging in protected activity.”
Liss-Riordan says the legal battle is far from over.
“We're planning out our next steps now, and we do intend to pursue this,” Liss-Riordan said. “That will either be through an immediate appeal or we may go back to this court and ask her to look at this again.”
Kinzer says when she and other Whole Foods employees started wearing “Black Lives Matter” masks to work last summer, they didn’t expect any pushback from the organization.
Following the death of George Floyd and nationwide anti-racism protests, Whole Foods posted a statement on the company website in support of the movement. “Racism and discrimination of any kind have no place at Whole Foods Market,” the website read. “We support the Black community and meaningful change in the world.”
Whole Foods' parent company, Amazon, publicly posted a similar stance, with a “Black Lives Matter” banner on the online retailer’s website and social media posts supporting the statement by CEO Jeff Bezos.
“We did it without question," Kinzer said. "We thought this was going to be fine, wearing a mask that said 'Black Lives Matter,' especially in our community. Initially it wasn’t about protesting Whole Foods for preventing us from wearing the masks. Initially it was just about supporting our Black coworkers in this time.”
“We assumed they would join us, to take this chance to support their workers, the backbone of their company,” Kinzer continued. “They completely missed that. We hope they change their mind.”
