No option makes grooming a tough call
Published 03/10/06

A recent decision from the Massachusetts District of the United States District Court illustrates the ongoing struggle employers and the courts have in striking a balance between accommodating an employee's religious practices and implementing a company's grooming or dress policy.

In the case of Bobby Brown v. F. L. Roberts & Co. Inc. d/b/a/ Jiffy Lube , a United States District Court for the District of Massachusetts Judge on March 3, 2006, ruled that Bobby Brown could not go forward to trial on his federal religious employment discrimination claim under Title VII of the Civil Rights Act.

Brown has been practicing Rastafarian since 1991. Because of his religious beliefs, he does not shave or cut his hair. From 1999 to May 2002, he was employed intermittently at a Jiffy Lube oil change facility in Hadley , Massachusetts which was one of several operational divisions owned by F. L. Roberts & Co., Inc.

In July 2001, Brown was hired as a lube technician, and in this capacity, he serviced vehicles while working in both the upper and lower bays at the Hadley facility. Soon thereafter, Jiffy Lube hired a consultant to help develop and implement strategies to increase business. As part of the consultant's recommendations, the company established a clean shaven personal appearance policy, which stated that all customer contact employees are expected to be clean shaven with no facial hair.

Brown, as a lube technician, did have some contact with customers, and due to his religious beliefs, believed the company should waive the grooming policy as it applied to him. The company declined that request for an accommodation, stating that he could remain employed performing technician work in the lower bay, where there was minimal customer contact.

The upper and lower bay technicians carried the same level of responsibilities and in fact, Brown, during this period of time, received a merit raise. Yet the evidence indicated that the time he spent working exclusively in the lower bay, Brown was subjected to very cold temperatures, was often the only one working in the lower bay and therefore not able to take as many breaks, and had been burned by oil and hurt his head several times when he hit it on a pipe in the lower bay.

The Judge, in analyzing a religious employment discrimination claim, requires the employee to initially prove that:

A.   He had a bonafide religious practice which conflicts with the employment requirement;

B.   He brought the practice to the employer's attention;

C.   The religious practice was the basis for an adverse employment decision.

Brown was able to prove, uncontested by the company, that he legitimately believed in the Rastafarian faith which did prohibit the shaving of his beard, that the company knew of this religious belief, and that the company transferred him to exclusively work in the lower bays.

The Judge did note that it was a close call in determining whether or not relegating the employee to the lower bays was an adverse employment decision by the employer. The Judge noted that workplaces are rarely idyllic retreats and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.

Brown was divested of some responsibilities, namely his responsibilities in the upper bays and in dealing with customers, yet on the other hand, his transfer, if indeed it could be called a transfer, might be considered purely lateral in that he continued to work as a lube technician and was paid the same.

However the Judge found Brown met his initial burden showing a materially adverse employment action in part because he noted that as a practical matter, pay scales and formal job titles are only part of the conditions of a job. As the Judge noted, anyone who works knows that opportunities for variety in day to day tasks and reasonably palatable physical surroundings may make the difference between a tolerable and flatly unbearable working environment.

Since the Judge found that Brown had met his initial burden, the burden then shifted to Jiffy Lube to show that it offered Brown a reasonable accommodation or that doing so would have resulted in an undue hardship. Brown argued in part that the company's policy of no customer contact if one was not clean shaven was strictly enforced in this case by relegating him to the lower bay, and therefore there was no accommodation.

The Judge found this argument to be unpersuasive in that it implies that an employer whose formal policies attempt flexibility to anticipate the diverse need of its employers will rarely be able to show that it offered an "accommodation" whereas an employer who adopts rigid rules will have no difficulty offering a minor adjustment to demonstrate that it has deviated from or relaxed its policies. Since having flexible policies in the first instance should be encouraged the Judge found that such an analysis by Brown was legally untenable and impractical.

Nevertheless, in further analyzing whether or not Jiffy Lube could prove it provided a reasonable accommodation, the Judge found that a jury could under this evidence find that Jiffy Lube failed to provide a reasonable accommodation in relegating Brown to work exclusively in the lower bays and therefore he turned to the last part of the analysis of whether or not the accommodation available would be an undue hardship.

The Judge noted that Brown gave Jiffy Lube no other option than an exemption from the grooming policy. The Court noted that this all or nothing strategy of Brown was difficult since the Courts have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges. Employers have a legitimate business purpose in implementing and enforcing personal appearance regulations in that employees reflect on their employers, especially when the employees regularly interact with customers.

The Judge ultimately found that where Brown would accept no accommodation short of an outright exemption to a neutral grooming policy, such an exemption would be an undue hardship on Jiffy Lube because it would adversely affect its public image. The Judge did not however come about this conclusion without a sense of uneasiness. The Court expressed its concern that an employer may use this public image analysis to terminate or restrict customer contact on image grounds, of an employee wearing a yarmulke, a veil, or mark on the forehead that denotes Ash Wednesday from any Catholics.

The Judge noted more likely and more ominously considerations of public image may persuade an employer to tolerate the religious practice of predominate groups while arguing "undue hardship" and "image" in forbidding practices that are less widespread or well known.

As noted above, the Court ultimately decided that this federal religious employment discrimination claim could not go to a jury and therefore ruled in favor of Jiffy Lube. However, the Judge also had before him a Massachusetts state law religious employment discrimination claim which the Judge dismissed from the federal court case with the specific order that Brown could re-file that state law religious employment discrimination claim in the Massachusetts state courts noting that a state court judge may, in analyzing the state law, find that Brown does have a religious employment discrimination claim against Jiffy Lube.

Simply put, this case is not over and exemplifies the reason that both employee and employer, in attempting to reach accommodations as to religious practices, should have an interactive dialogue to see if an accommodation acceptable to both can be reached.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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