The Curious Case Of Bobby Brown v. F.L. Roberts

In Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674 (2008), the Massachusetts Supreme Judicial Court rejected an employer’s argument that an employee’s requested exemption on religious grounds from the employer’s personal appearance policy constituted an undue hardship under Massachusetts state law. Two years earlier, in Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7 (D. Mass. 2006), a federal court judge, considering the same facts involving the same parties, reached the opposite conclusion, holding that under Title VII, the same requested exemption constituted an undue hardship as a matter of law. These two cases demonstrate the need to assess both state and federal law critically when entering into the thicket of considering and implementing reasonable accommodations.

The controversy in Brown began in January 2002 when Jiffy Lube, a division of F.L. Roberts, implemented a new “personal appearance” policy. That policy provided that “all customer-contact employees are expected to be clean shaven with no facial hair ‘ Hair should be clean, combed and neatly trimmed or arranged. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted.” Brown, 452 Mass. at 677. Jiffy Lube implemented the personal appearance policy after an outside consultant opined that “retail establishments with a ‘clean shaven Personal Appearance Policy’ are more successful than those without such a policy because a significant segment of the consuming public prefers to interact with retail employees who have a more conventional appearance.” Brown, 452 Mass. at 687.

Bobby Brown was employed by Jiffy Lube as a lube technician in its Hadley, MA, facility. In that role, Brown worked on vehicles, greeted customers and discussed available products and services. Brown was also a practicing Rastafarian who, consistent with his religious beliefs, did not shave or cut his hair. Brown, 452 Mass. at 677. Upon learning of the new personal appearance policy, Brown told his superiors that he wished to maintain customer contact, but that his religious beliefs prohibited him from cutting his hair or beard. The employer refused to permit Brown to continue any customer contact, and subsequently assigned Brown to work only in the “lower bay” in which, according to Brown, working conditions were significantly worse than in the “upper bay” and customer contact areas in which he had previously worked. Brown, 452 Mass. at 677-78.

Brown subsequently filed a complaint in federal court in Massachusetts, alleging that Jiffy Lube failed to accommodate his religious beliefs, in violation of Title VII, 42 U.S.C. ‘ 2000e-2(a) and Mass. Gen. Laws c. 151B, ‘ 4(1A). On cross-motions for summary judgment, the district court dismissed Brown’s Title VII claim, holding that, even if Brown could prove a prima facie case of religious discrimination and that Jiffy Lube failed to offer him a reasonable accommodation, his request for a complete exemption from the company’s grooming policy constituted an undue hardship requiring judgment for the employer. Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7, 12, 19 (D. Mass. 2006). The district court withheld judgment on Brown’s state law claim, dismissing it without prejudice for Brown to pursue in state court.

Under Title VII, a plaintiff has the initial burden to establish that a bona fide religious practice conflicts with an employment requirement and was the reason for the adverse employment action. If the employee establishes a prima facie case of discrimination, the burden shifts to the employer to show that it offered the employee a reasonable accommodation or, if it did not offer an accommodation, that doing so would have resulted in undue hardship. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004). An accommodation that requires an employer to bear more than a de minimus cost is an undue hardship and need not be provided. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); Cloutier, 390 F.3d at 134.

In reaching its conclusion that complying with Brown’s request would cause Jiffy Lube undue hardship, the district court relied upon the First Circuit’s holding in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). Brown, 419 F. Supp. 2d at 15-19. In Cloutier, an employee alleged that her employer failed to offer her a reasonable accommodation after she complained that the company’s “no facial jewelry” policy conflicted with her religious beliefs as a member of the Church of Body Modification. The employee contended her beliefs required that her facial piercings be visible at all times and prohibited her from covering or removing her facial jewelry. Cloutier, 390 F.3d at 128-29. The employer offered several accommodations, including permitting the employee to cover her facial piercing with a band-aid or replace it with a clear retainer, all of which the employee rejected. Cloutier, 390 F.3d at 128. In affirming the district court’s summary judgment in favor of the employer, the First Circuit held that granting an outright exemption from a neutral dress code “would be an undue hardship because it would adversely affect the employer’s public image.” Cloutier, 390 F.3d at 136.

On the record before it, the district court in Brown found that Brown offered no suggestion for accommodation other than a total exemption from Jiffy Lube’s personal appearance policy. In light of controlling authority from the First Circuit, the court granted Jiffy Lube’s motion for summary judgment and dismissed Brown’s Title VII claim. The court, however, was explicit in its reservations concerning the First Circuit’s seemingly broad approval of employers’ “public image” policies:

One has to wonder how often an employer will be inclined to cite this expansive language to terminate or restrict from customer contact, on image grounds, an employee wearing a yarmulke, a veil, or the mark on the forehead that denotes Ash Wednesday for many Catholics. More likely, and more ominously, considerations of ‘public image’ might persuade an employer to tolerate the religious practices of predominant groups, while arguing ‘undue hardship’ and ‘image’ in forbidding practices that are less widespread or well known. Brown, 419 F. Supp. 2d at 17.

With regard to Brown’s state law claim, the district court noted that Massachusetts courts had not yet addressed whether exempting an employee from a dress code policy constituted an undue hardship and opined that “it is possible in this case that state law may be more generous to Plaintiff than federal law.” Brown, 419 F. Supp. 2d at 19. Accordingly, the district court dismissed Brown’s state law claim without prejudice to renew in Massachusetts state court.

Initially, Brown’s state law claim did not fare any better than his federal claim. At the summary judgment stage, the state court judge assumed Brown could prove his prima facie case of discrimination, but, relying on Cloutier in the absence of controlling Massachusetts case law, concluded that Brown’s request for a complete exemption from Jiffy Lube’s grooming policy constituted an undue hardship as a matter of law and entitled the company to summary judgment. Brown, 452 Mass. at 679. On direct appellate review, the Massachusetts Supreme Judicial Court (“SJC”) vacated the lower court’s summary judgment and remanded the matter for trial. In so doing, the SJC expressly rejected on state law grounds the same arguments found dispositive on Brown’s Title VII claim.

First, the SJC rejected Jiffy Lube’s contention that Brown’s request for a complete exemption from the personal appearance policy constituted an undue hardship as a matter of law and hence it had no obligation to engage in an interactive process with Brown to find a reasonable accommodation. Brown, 452 Mass. at 680. The court noted that because c. 151B, ‘ 4(1A) “requires an employer to provide a reasonable accommodation unless there is an undue hardship,” Brown’s initial request for an exemption did not relieve Jiffy Lube of its obligation to explore other possible accommodations. Brown, 452 Mass. at 682-83 (emphasis in original). (It is interesting to note that on appeal to the SJC, the parties addressed only the issue of undue hardship, with Jiffy Lube reserving the right to raise at trial whether offering Brown the opportunity to work in the lower bay was a reasonable accommodation. Brown, 452 Mass. at 679 n. 5.) In so holding, the court distinguished Cloutier and the cases cited therein in which employees rejected offers of accommodation, the sincerity of a claimed religious belief was questionable or where grooming polices related to safety or sanitation issues. Brown, 452 Mass. at 682 n. 7.

Second, the court held that “an exemption from a grooming policy cannot constitute an undue hardship as a matter of” Massachusetts law. Brown, 452 Mass. at 683. In so holding, the court concluded that “[i]n the absence of a search for a reasonable accommodation, an employer is required to conclusively demonstrate that all conceivable accommodations would impose an undue hardship on the course of its business.” Brown, 452 Mass. at 683 (quoting Mass. Bay Transp. Auth. v. Massachusetts Comm’n Against Discrim., 450 Mass. 327, 340 (2008). The court specifically noted that, unlike Title VII, Mass. Gen. Law c. 151B, ‘ 4(1A) defines undue hardship as:

the inability of an employer to provide services which are required by and in compliance with all federal and state laws ‘ or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee’s presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee’s presence is needed to alleviate an emergency situation.

See Brown, 452 Mass. at 676, 684 (noting that “[t]he statute’s nonexhaustive list illustrates the types of accommodations that constitute excessive interference with an employer’s business affairs.”); Mass. Bay Transp. Auth., 450 Mass. at 336-37 (Massachusetts undue hardship standard is “‘notably different’ and allows for slightly broader religious protection” than Title VII). Because the record before the trial court failed to demonstrate that Jiffy Lube considered how Brown’s request would impact the nature and operation of Jiffy Lube’s business or that all possible accommodations would impose an undue hardship as defined by c. 151B, ‘ 4(1A), summary judgment was inappropriate.

The divergent holdings of the federal and state court opinions in Brown demonstrate the need to consider both federal and state law when assessing and defending employer responses to requests for accommodations of religious practices. Regardless of whether accommodation requests are considered under state or federal law, the Brown cases suggest that employers can reduce their exposure to religious discrimination claims by taking the following actions: