MCAD files Amicus Brief in Bobby Brown v. FL Roberts & Co.
The Commission filed a Brief of Amicus Curiae in the Massachusetts Supreme Judicial Court in Brown v. F.L. Roberts & Co., Inc. --- N.E.2d ----, 2008 WL 5050172 Mass., 2008, an appeal involving a "grooming" policy. In the case, the Superior Court entered summary judgment in an employer's favor against an employee who claimed that adherence to the policy would force him to violate his religious faith. The Commission argued for reversal of the Judgment, and its analysis was largely adopted in the Court's decision. The opinion is summarized below and includes a link to the decision.
Summary: In June, 2006, the plaintiff Bobby Brown filed a complaint in the Superior Court pursuant to G.L. c. 151B, § 4(1A), claiming that a new grooming policy at Jiffy Lube Service Station in Hadley, Mass., adopted following the recommendation of a consultant, which required all employees who had customer contact to be clean shaven, discriminated against him due to his religion. The plaintiff, a Jiffy Lube Technician, is a practicing Rastafarian and asserted that his religion does not permit him to shave or cut his hair.
As a Technician, the plaintiff worked on motor vehicles in the upper and lower bays of his place of business. When he worked in the upper bay he also worked as a greeter, salesperson, and cashier, interacting with the public. When the new grooming policy was announced, the plaintiff told his manager and assistant manager that he wished to maintain customer contact by working in the upper bay but shaving or cutting his hair would contradict his religious beliefs. Jiffy Lube responded that if the plaintiff did not comply with the new policy, he would be allowed to work only in the lower bay and could not have customer contact.
The parties filed cross motions for summary judgment. A Superior Court judge concluded that the plaintiff was seeking an exemption from the grooming policy, which as a matter of law, constituted an undue hardship for Jiffy Lube because it had a right to control its public image by adopting the recommendations of its consultant, including the grooming policy.
The Supreme Judicial Court, however, vacated the lower court decision in favor of the employer and remanded the case to the Superior Court for further proceedings. In doing so, the SJC ruled that once the employee made it clear to Jiffy Lube that there was a conflict between the grooming policy and his religion, i.e. that compliance with Jiffy Lube's grooming policy would required him to violate a religious practice, Jiffy Lube was obligated under state law (G.L.c. 151B, § 4(1A)) to provide a reasonable accommodation unless to do so would result in undue hardship. Thus, the Court held that Jiffy Lube had an obligation to participate in a dialogue with the employee in an effort to find a possible accommodation.
The Court also concluded that the employee's initial request for an exemption from the grooming policy did not amount to undue hardship, as the Superior Court had found. In fact, the Court concluded that an exemption from a grooming policy could never constitute an undue hardship. The Court reaffirmed that the burden is on the employer to conclusively demonstrate that all conceivable accommodations would impose an undue hardship.
In reaching its decision, the Court evidenced serious concern about potential misuse of "public image" as a justification for grooming policies and cited language from the EEOC's Compliance Manual, to wit, "[w]hile there may be circumstances in which allowing a particular exception to an employer's dress and grooming policy would impose an undue hardship, an employer's reliance on the rubric of 'image' to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called 'customer preference.') in violation of Title VII." Thus, the Court left open for another day whether (and if so, to what degree) customer preference could allow an employer to discriminate based on religion, but noted in this context that customer or coworker preference is not a bona fide occupation qualification under Commission Regulations.
Finally, the Court remanded the case to the Superior Court for a determination of whether assignment of Jiffy Lube's employee to the lower bay was a reasonable accommodation for purposes of (G.L.c. 151B, § 4(1A)).
The Brief of Amicus Curiae was authored by Beverly Ward, Commission Counsel.