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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