The First Amendment Restricts the Government, not Whole Foods

Image labeled for non-commercial use, Erin Clark.

By: Kendall Williams, Staff Writer Vol. 20

**Update**

On June 28, 2022, the First Circuit ruled 3-0 that the Whole Foods employees’ rights were not violated under Title IIV by Whole Foods or its parent company Amazon. The First Circuit found that the case was properly dismissed by the trial court. However, National Labor Relations Board (NLRB) prosecutors asked the Board to reverse an agency ruling about a similar case involving Home Depot employees, which may impact the Whole Foods case.

Dress Code Controversy

Whole Foods, a grocery store chain based out of Austin, Texas, recently found itself in court over Black Lives Matter masks. The company has a policy prohibiting employees from wearing anything with a slogan on it. That policy reads: “You must wear Whole Foods Market shirts/tops . . . or shirts/tops without any visible slogan, message, logo or advertising on them.”

Employees violated this policy by wearing Black Lives Matter masks, pins, and tags to work. They were sent home without pay, and given disciplinary points that could lead to punishment after sufficiently accumulating. The points also render each employee ineligible for top wage increases.

As per the company policy, the company bans all slogans, not just “Black Lives Matter;” however, in July 2020, the Whole Foods employees sued, alleged racial discrimination, and claimed that Whole Foods selectively enforced the policy, singling out Black Lives Matter attire. These employees were backed by the National Labor Relations Board (NLRB), a Federal agency dedicated to upholding workers’ rights.

In response, Whole Foods claimed that the General Counsel of NLRB was effectively trying to violate Whole Foods’s First Amendment rights by compelling employer speech. In a court filing, Whole Foods made the argument: “By singling out the phrase ‘Black Lives Matter’ the General Counsel is impermissibly favoring, and requiring that [Whole Foods] favor, certain expressions of political speech over others.”

Whole Foods maintains that its policy is content-neutral; it is not intended to stifle certain partisan slogans, but rather, is aimed categorically at all slogans with the goal of providing effective and focused service to customers. In theory, limiting the personal expression of Whole Foods employees eliminates distractions and avoids nettling fellow workers and customers.

The court, recognizing that Whole Foods “did not discriminate on the basis of race. Rather, at worst, they were selectively enforcing a dress code to suppress certain speech in the workplace,” dismissed the employees’ claim against Whole Foods.

The Role and Reach of the First Amendment

The First Amendment—and the Constitution in its entirety—only limits the power of government, by ensuring that it cannot overstep its bounds in preventing or compelling speech. “[T]he First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Individuals and private companies have the right to refrain from issuing certain, or more broadly, any, messages. Exceptions are made when an individual or corporation’s right to free speech infringes on another’s rights. Examples include “obscenity, child pornography, or speech that constitutes what has become widely known as ‘fighting words.’” Similarly, private businesses cannot restrict employees’ right to speak out against improper terms of employment.

Generally though, the First Amendment does not so limit private employers from coming up with policies which prevent or compel speech. Corporate speech is protected by the First Amendment. Private employers are generally able to prevent and compel employer speech when they are acting as representatives of the company, so employees wearing a mask that amounts to “expression” is not protected by the First Amendment when they are at work. The district court that took this case acknowledged the futility of a First Amendment claim from employees in a footnote: “at heart, this is a First Amendment claim that Plaintiffs are trying to shoehorn into Title VII in recognition of the fact that there is no right to free speech in a private workplace.”

The First Amendment issue at play, then, was Whole Foods’ defense that requiring it to allow BLM wear as a response to employees’ racial discrimination claim would constitute compelled speech.

When Supposed Rights are in Conflict

In this case, competing First Amendment interests were seemingly at play. On the one hand, Whole Foods claimed that it is within its authority to prevent employees from wearing slogans. Any government/court-imposed direction to the contrary would constitute compelled speech, as Whole Foods would effectively be forced to condone messages and in this case, Black Lives Matter related messages.

On the other hand, the employees raised a First Amendment restricted speech claim disguised as a racial discrimination claim. Similarly, in Trans World Airlines, Inc. v. Hardison, airline employee Hardison claimed that Trans World Airlines’s (TWA) discriminated against him on the basis of religion by not allowing him to be off on his sabbath, Saturdays. Presented as a religious discrimination case, the court recognized that this also raised First Amendment Freedom of Religion concerns. TWA’s policy did not single out anyone, much like that of Whole Foods. The court ultimately ruled in favor of TWA, in part because TWA was not required to assist Hardison in practicing his religion.

Fortunately, the court was not forced to favor one First Amendment protection over another here, as the employees recognized that Whole Foods is a private entity and thus is not constrained by the First Amendment. Like the Manhatten Neighborhood Network (MNN) in Manhatten Community Access Corporation v. Halleck, Whole Foods is a private employer. In that case, MNN was at liberty to exclude certain contributors after those contributors spoke out against MNN. Private companies are able to restrict employee speech as a way of ensuring no messages are delivered that reflect negatively on the company itself.

While the First Amendment enables Whole Foods employees to don BLM insignia in their private lives, this right does not hold up against a company policy prohibiting such attire. Starbucks has a policy similar to Whole Foods’s—in that it ultimately does not allow BLM attire—and it has not yet been take to court over the matter. Should such litigation ever be initiated, it will come down in favor of Starbucks, just as it did for Whole Foods here.

Because private employers are able to ban certain forms of speech, if an employee does not agree with company policies, their time is better spent searching for a new job than initiating hopeless litigation—whether expressly presented as a First Amendment claim, or disguised as something else.