Amazon’s Whole Foods Argues SCOTUS Website Designer Ruling Allows Company to Fire Employees for Wearing BLM Attire at Work
The employees argue they wore BLM attire to protest workplace racism, such as when the grocery store offered ‘free food to police during the time of a protest against police brutality,’ which left black employees ‘concerned for their safety.’
Amazon subsidiary Whole Foods Markets argues the First Amendment allows the company to terminate employees for wearing activist attire on company time. Whole Foods argues employee attire reflects company speech that, in light of 303 Creative LLC v. Elenis, the government may not compel under the guise of enforcing labor laws.
Whole Foods and several former employees have been embroiled in a years-long labor dispute before the National Labor Relations Board (NLRB). Whole Foods terminated several employees for wearing Black Lives Matter (BLM) attire on company time in purported violation of the company’s dress code. The former employees argue they wore BLM attire to protest racism in the workplace.
On August 8, the administrative law judge overseeing the case ordered the parties to present arguments on what effect, if any, 303 Creative had on the labor dispute. In 303 Creative, the United States Supreme Court held the First Amendment prohibits the government from compelling expression under the guise of enforcing an anti-discrimination law.
The employees argue labor laws protect their attire as a protest against workplace racism at Whole Foods, including one “callous” incident when a Whole Foods location offered “free food to police during the time of a protest against police brutality,” which left black employees “concerned for their safety.”
The employees also cite another purported racist incident when “a white manager compell[ed] a Black employee to climb a ladder in public view on a busy street to hang a banner with the Whole Foods logo that reads ‘Racism has no place here. We support the Black community.'”
The employees argue 303 Creative has no impact on labor laws because even if their attire reflects company speech, both Whole Foods and its parent company, Amazon, have publicly supported Black Lives Matter. In 303 Creative, the web designer who refused to design websites for gay weddings opposed gay marriage.
Whole Foods disputes the employees’ stated reason for wearing BLM attire on company time. One employee, Whole Foods noted, admitted to wearing BLM attire not for improved workplace conditions but “to leverage [Whole Food]’s brand and customer base to advance their own social, political and/or human rights beliefs.”
An employee “testified she was aware [her] ‘Black Lives Matter’ face mask would ‘offend some customers,’ but she did not care.” The employee believed offended customers “should shop elsewhere.”
Whole Foods argues 303 Creative prohibits the NLRB from forcing the company to permit BLM attire for such purposes.
“303 Creative,” Whole Foods argues, “recognized that an organization’s speech, even when combined with the speech of others, is still the speech of that organization – which the employer has a First Amendment right not to participate in.
The employees’ brief:
Whole Foods’ brief:
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Comments
When Amazon bought Whole Foods they considered changing the name to Amazon Whole Foods. But, that didn’t test well. So, they are just going to add the Initial A.
A Whole Foods.
Brilliant!
We used to refer to them as “Whole Paycheck”.
Oddly, some things are actually cheaper there. I used to meet people at Whole Foods, so while I was there I buy (normal, inorganic) bananas at 49c a pound. which was considerably cheaper than anywhere else.
I actually find myself on Amazon’s side.
On this particular 1st amendment issue our interests and those of Amazon coincide. Nothing wrong with temporary allies of convenience to move the ball forward so long as we don’t climb into bed with them permanently.
This is very much like the Muslims being against pornographic books in public schools aligning with Christian parents against the same thing. It is fine to work together on an issue of concern but like the gingerbread man on the fox’s back, be careful who you swim with.
I thought this was settled law – the employer has the right to prohibit such clothing while on duty: the only exception being Union badges, et al.
What make this any different except the magic acronym “BLM”?
“Magic acronym” is perfect!
Progressivism is full of totem words and phrases. “Racist”, “bigot”, “misogyny”, etc.
Instead of being a defensive, apotropaic term, “BLM” is intended to conjure goodness, like stroking a rabbit’s foot.
It’s magical thinking all the way down.
Is it required religious garb? No.
Is it political activism? Political activism on private property isn’t protected.
Progressive stock clerks: Wah, wah, I can’t do whatever I want while someone else is paying me.
Hey, roadkill pickup is hiring, and it’s a government job. I bet they will.
Of course, it is settled law but that doesn’t apply to blacks. They can burn, loot, and murder in the name of racism and the law does not apply to them.
Because they’re alleging that prohibiting them from wearing this particular message is racist, and creates a hostile work environment for them. Which is of course utter BS, but it gets them into court.
The employee believed offended customers “should shop elsewhere.”
Any employee that thinks that should be shown the door.
Any employee that thinks that should be shown the door.
immediately
If I had been her customer, I would have changed lanes to check out and then told the manager.
Apparently they don’t see the connection between customers and their paycheck.
Well, that one employee admitting it was so she could leverage company power to back her own politics sort of screwed the pooch for everyone else. Because that is pretty much cause for firing in any company. You can proselytize on your own time.
But I love the argument: Whole Foods saying they shouldn’t practice politics on company time while the activists argue “the company is racist, so we can do what we want.”
Also, a just system would not only throw out the suit on the basis of the stupidity of their “racism” charges, but would hit them with a SLAPP, as well. I mean, c’mon, they claim it’s racist for the boss to tell someone to hang a company banner just because the boss is white and the underling is black? “Get the f*** outta heah” should be the only response that claim should get.
BLM has gone way way too far. It is not a legal violation per-se for a company to be “racist”, there have to be certain specific types of discrimination that are illegal. If the employees just generally feel the company is “racist”, or they don’t like anything else about it, they’re free to work elsewhere that suits their vibe better.
Why is this before an administrative law judge? Indeed, why do such monstroties exist? The Constitution clearly separated judicial from executive powers, yet here we another instance of the Constitution’s being trashed by the usurpation of judicial powers by the executive.
You’re not wrong, and several Supreme Court justices have expressed similar concerns, but in principle this is the explanation: This is not a judicial proceeding, the company isn’t facing legal sanctions. It’s an administrative proceeding within the executive branch, so the executive can decide whether to take legal action against the company or not to. If and when the ALJ finds against the company and imposes penalties, then the company can choose to sue the government in a real court.
Except that in practice it doesn’t really work that way, which is why SCOTUS justices are concerned.
Thank you for your comment. Nevertheless, these things shouldn’t exist. The executive has assumed both a legislative function through rule-making and a judiciary function. That is why the administrative state is so powerful, and this is exactly what the Founders did not want. The only way to rein in the administrative state is to strip it of both functions.
Has Amazon or its tentacles even held it against an employee for being pro-life or pro-Republican? Come on be honest.
You’d have heard about it from Tucker or Sean or Alex.
Interesting question. Asked a relative who works for Ring’s manufacturing side (now Amazon owned) if he knew of any firings due to “based” behavior, vax refusal, etc. He replied, “The only firings I’ve seen go by that raised an eyebrow were because the employee’s behavior was so insanely egregious that I was shocked it took that long. Back in the day we had a guy get fired after he told the third caller in one day to go %%% themselves. THREE.”
Grudgingly have to side with Amazon on this one
(after inspecting from multiple angles and pinching myself, although siding with a union would be odd too)
As far as offended customers shopping elsewhere, it’s worth reminding offensive employees can be working elsewhere too.
PS- Although I do like knowing which employees are against me – so I can pick a different sales associate to get my commission for instance – employees could be intimidated into going along also which is worse.
And here I thought they were just dyslectic baseball fans.
Would “dyslectic” be reading Marx backwards? Being the synthesis of “dyslexic” and “dialectic”?
Marxist electrical engineering professors teach dilectrical materialism when discussing insulation properties.
If you are attempting a bitchy, sarcastic spelling criticism, you are sadly mistaken. Dyslectic is a proper alternative spelling. Ok, BWG?
Well, it appeared to be a misspelling, and I thought it was kinda funny of one because of the Marxian bit of “dialectic”. I don’t typically complain about spelling unless it’s really egregious or it’s in the original post (they should be taking the time to edit those) and bad. I just thought it made for a good bit of word play. Unclench a little.
Well, they’re not smart enough to be feral burros.
(In less than 24 hours, mine figured out how to open our automatic entry/exit gate by pushing the newly-installed button with his nose. I had to recess the hell out of the inside button to keep him home.)
Allows Company to Fire Employees for Wearing BLM Attire at Work
Um…. I don’t see the problem.
“It makes Black employees feel unsafe.”
Seriously? WTF is going to happen? Is the Klan going to show up on horseback?
The frightened blacks can look for work elsewhere.
The excuse has been used so much and given license Leftists say “they don’t feel safe” anytime nothing goes their way.
Their feelings can’t be proven or unproven, and every time a judge lets that trump somebody’s actual rights, they win. It’s a button they’ve learned to push with their noses.
I don’t feel safe in a store that says “no firearms allowed”, yet don’t have metal detectors to prevent criminals from entering with guns, yet they would never know about my concealed firearm unless I needed it to defend myself or others, but it is not allowed..
Even if these grievance artists consider cops the enemy, providing food to your enemy is a benevolent gesture.
What a bunch of whiny crybabies
The claim is that since the police are notorious for beating and/or killing black people for no reason, and every black person is automatically, simply by reason of his skin color, at risk at any moment of being attacked by a policeman, therefore offering free food to the police, and thus encouraging them to come into the business and spend time there, makes them feel unsafe. At every moment they fear one of these policemen who came for the free food will attack them just for lulz.
Which is of course completely false from beginning to end, but that is what they are claiming.
There are better places to shop
Play woke games, win stupid prizes. Shouldn’t have let the blacks wear BLM nonsense at work and only had them wear Whole Foods related clothing while on the clock.
Standards and discipline are important for cohesion and readiness, Millhouse.
They didn’t let them wear BLM nonsense at work. That’s what this whole case is about.
And no, it’s got nothing to do with “standards and discipline” and everything to do with not driving the customers away.
Yeah, they did. If they even let them go a day without sending them home wearing BLM nonsense Amazon implicitly allowed it. Amazon also allowed this nonsense in their corporation proper, so how are they going to have a separate standard for Whole Foods?
Yes, it has everything to do with “standards and discipline”, which in turn helps retain customers be abuse everyone operates on one standard and are disciplined to push the goals of the company over the goals of the self.
Is there supposed to be some kind of problem with having a dress code? I’ve never worked anywhere that allowed the employees to dress in whatever they want to wear.
I worked for one employer who let their employees dress however they want, in the call center, at least: Sears. I used to show up in tank tops, shorts and sandals. Some people literally just woke up and came to work in their pajamas.
Sears went out of business.
I doubt the call center dress code, or lack thereof, had any meaningful effect on Sears’ business. Dumping their mail-order business and the lifetime warranty on Craftsman tools were far more significant. Kenmore appliances had a good reputation that they managed to ruin too.
If you lack standards and discipline for the small things, you will not have standards and discipline for the big things. Have you ever walked into a Kmart or Sears and saw how those stores looked?
All of the three you mentioned are all a result of Sears lowering their standards and lacking discipline. It doesn’t amaze me that people who are supposedly educated can’t figure this simple little thing out.
Run for the Senate, fool!
Ask Chuck Schumer?
A friend told me that his employer’s dress code was: “If clients are coming, wear clothes”.
Come to think of it, the employees have been much nicer for the few times I’ve been in whole foods recently. I wonder if there is a cause/effect due to most of these a-holes leaving (because I definitely remember them being there in the past).
“A common misconception is that employees have a constitutionally protected right of free speech in the workplace. The truth is, public sector employees enjoy some limited protection. But if you’re a private employee, the First Amendment will not protect you from being fired for something you say at work.”
https://www.lawyers.com/legal-info/labor-employment-law/privacy-and-other-employee-rights/freedom-of-speech-in-the-workplace-what-are-your-rights.html
If the dress code says company shirt, black pants, name tag, and no political or activist slogans – then that is the dress code. If you don’t like it, find a different job.
My company always had a policy of not wearing clothing with any words or slogans on it — except that it overlooked the Obama shirts on election day 2008.
I would not turn around and walk out of the store for many political messages, but for BLM I would. That group has gone too far and had too much protection beyond normal standards.
Absolutely Amazon should win. Otherwise employees could threaten to wear their BLM garb and drive customers like me away, if they don’t get whatever they “demand”.
Agreed.
BLM is an enemy of civilization, and all reasonable people should reject it outright.
This is what happens when the inmates are let out of the insane institution.
If I were there I’d reply that the “protests” against supposed “police brutality” is what made me feel unsafe, and having police constantly coming in to get free food made me feel safe.
Huh? How is that even alleged to be racist?
And I believe that employees who are offended by giving free food to policemen should work elsewhere.
Compelled speech doesn’t only mean speech the person being compelled disagrees with. It also includes speech that person agrees with but doesn’t wish to express at this time and in this place. In this case, Amazon supports BLM, but not in front of the customers.
Everyone can see why a store would not want their employees to wear Nazi uniforms or insignia; or Democratic Party’s Klan outfits . There is no significant difference between these groups and BLM. If black people don’t want to have unpleasant experiences with the police they shouldn’t commit crimes.
🎼 All you need are concerns, da, da, da, da, da.
Oh, the employees-of-color were concerned. Poor things. 😆
I saw a spot a couple of years ago where someone wore a black shirt with large, white lettering in the same bold, sans serif font as used by BLM with the letters YLM and the message below it “Your Life Matters.” He said he was amused at those who objected, saying he shouldn’t wear it because it was a parody of their favorite political movement. When he asked, “Are you saying your life doesn’t matter?” the deer-in-the-headlights look was a treat to see.
.