Nos. 22-1064 23-1100

SAVANNAH KINZER, individually and on behalf of all others similarly situated; HALEY EVANS, individually and on behalf of all others similarly situated; CHRISTOPHER MICHNO, individually and on behalf of all others similarly situated,

Plaintiffs, Appellants,

SUVERINO FRITH, individually and on behalf of all others similarly situated; CEDRICK JUAREZ, individually and on behalf of all others similarly situated; FAITH WALSH, individually and on behalf of all others similarly situated; MACKENZIE SHANAHAN, individually and on behalf of all others similarly situated; COREY SAMUEL, individually and on behalf of all others similarly situated; ABDULAI BARRY, individually and on behalf of all others similarly situated; LINDSAY VUONG, individually and on behalf of all others similarly situated; SAMANTHA BERIMBAU, individually and on behalf of all others similarly situated; CAMILLE TUCKER-TOLBERT, individually and on behalf of all others similarly situated; ANA BELEN DEL RIO-RAMIREZ, individually and on behalf of all others similarly situated; LYLAH STYLES, individually and on behalf of all others similarly situated; KAYLA GREENE, individually and on behalf of all others similarly situated; SHARIE ROBINSON, individually and on behalf of all others similarly situated; JENNIFER OSAYANDE, individually and on behalf of all others similarly situated; BRITNEY IFEBOHR, individually and on behalf of all others similarly situated; KANAYA RYLAND, individually and on behalf of all others similarly situated; KIRBY BURT, individually and on behalf of all others similarly situated; LEAVER MICHEL, individually and on behalf of all others similarly situated; SUEPRIYA ADHI, individually and on behalf of all others similarly situated; ALICE TISME, individually and on behalf of all others similarly situated; CHARLES THOMPSON, individually and on behalf of all others similarly situated; CASSIDY VISCO, individually and on behalf of all others similarly situated; KELLY RIGLER, individually and on behalf of all others similarly situated; JUSTINE O'NEILL, individually and on behalf of all others similarly situated; SARITA WILSON, individually and on behalf of all others similarly situated; YURIN LONDON, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

WHOLE FOODS MARKET, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson, Circuit Judges.

Shannon Liss-Riordan, with whom Matthew Carrieri and Lichten & Liss-Riordan, P.C., were on brief, for appellants. Michael L. Banks, with whom Andrew M. Buttaro, Terry D. Johnson, and Morgan, Lewis & Bockius LLP, were on brief, for appellee. David P. Boehm, Attorney, National Labor Relations Board, with whom Jennifer A. Abruzzo, General Counsel, Nancy E. Kessler Platt, Associate General Counsel, Dawn L. Goldstein, Acting Deputy Associate General Counsel, Polly Misra, Supervising Attorney, and Madeline Corkett, Attorney, were on brief for the National Labor Relations Board, amicus curiae.

April 24, 2024 LIPEZ, Circuit Judge. In the summer of 2020, amid pandemic mask mandates and nationwide racial justice protests, Whole Foods Market, Inc. ("Whole Foods") began disciplining employees who wore facemasks to work supporting the Black Lives Matter movement, citing its dress code. Suspecting Whole Foods of discrimination for singling out the pro-Black message, the three plaintiff-appellants ("the Employees") persisted in wearing these masks, among taking other