Federal Judge Upholds Employer Dress Code – Will the NLRB?

A federal judge dismissed a lawsuit filed against Whole Foods for unlawful retaliation which alleged  the grocery store had fired three workers for wearing Black Lives Matter masks. The judge ruled that the terminations were for violating the store’s dress code and were not discriminatory. The case is also currently pending before the NLRB, which is likely to come to the opposite conclusion, highlighting discrepancies between the Labor Board and a federal judicial decision on the same issues under different laws. 

Background: Whole Foods maintained a dress code policy that prohibited employees from wearing branded clothing of any kind other than Whole Foods branding. Regional stores began vigorously enforcing this policy during the COVID-19 pandemic as employees were then required to wear masks to work. Three employees were dismissed from the workplace multiple times for wearing “Black Lives Matter” masks and after being told to replace the masks with ones that conformed to the dress code. The employees were eventually terminated for continued noncompliance with the dress code, and subsequently filed charges in federal court against Whole Foods for unlawful termination under Title VII of the Civil Rights Act. The workers also filed unfair labor practice charges with the NLRB alleging that their termination was an unlawful violation of their right to engage in protected concerted activity. 

No discrimination: Judge Allison D. Burroughs found that the store’s decision to fire the three employees was due to failure to follow the store’s dress code, and that there was no evidence that “Whole Foods’ reasons for [the employees’] terminations were pretextual and motivated by discriminatory animus.” The court found “little evidence” to refute Whole Foods' legitimate business explanations for its strict enforcement of its dress code policy.” 

The NLRB is likely to rule differently: In the case before the Board, General Counsel Jennifer Abruzzo contends that Whole Foods discriminated against the employees for exercising their labor law rights. Should the Board side with Abruzzo, it will represent another instance in which an employer’s conduct is found to be lawful under one federal labor and employment law – in this case Title VII – but unlawful, per the Board’s interpretation, under the NLRA. Such instances highlight the significantly lower bar under the NLRA – at least as interpreted by the current Board – to prove employer conduct unlawful. 

Damned if you do; damned if you don’t: These discrepancies pose compliance risks for employers in other contexts as well. The current Board, like its Obama-era predecessor, will find many instances of employer discipline of employees unlawful under the NLRA, even in cases (unlike the Whole Foods case here) where the employee conduct in question is not objectionable enough to violate other federal labor and employment laws such as Title VII. Employers are therefore placed in the unenviable position of having to choose between maintaining a harassment and discrimination free workplace and risking NLRB unfair labor practice charges or holding off on disciplining objectionable behavior and risking a Title VII lawsuit, among other negative consequences.