Brown v. F.L. Roberts & Co., Inc.

• Decision Date: 02 December 2008
• Docket Number: SJC-10155.
• Citation: 896 N.E.2d 1279,452 Mass. 674
• Parties: Bobby T. BROWN v. F.L. ROBERTS & CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

896 N.E.2d 1279

452 Mass. 674

Bobby T. BROWN v. F.L. ROBERTS & CO., INC.

SJC-10155.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued September 3, 2008.

Decided December 2, 2008.

Joel Feldman, Springfield, for the plaintiff.

Claire L. Thompson, Springfield (Rebecca L. Bouchard with her) for the defendant.

Beverly I. Ward, Boston, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief.

Joel Eigerman, Sarah Wunsch, Boston, & Sara Smolik, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN,

CORDY, & BOTSFORD, JJ.¹

IRELAND, J.

In June, 2006, the plaintiff filed a complaint in the Superior Court pursuant to G.L. c. 151B, § 4(1A), claiming that a new grooming policy at one of the defendant's businesses, which required all employees who had customer contact to be clean shaven, discriminated against him due to his religion. The parties filed cross motions for summary judgment. A Superior Court judge concluded that, as a matter of law, an exemption from the grooming policy would constitute an undue hardship because the defendant had a right to control its public image. She granted the defendant's cross motion for summary judgment and denied the plaintiff's motion. The plaintiff appealed, and we granted his application for direct appellate review. Because the defendant did not engage in an interactive process to address the plaintiff's religious needs, it was the defendant's burden to prove conclusively that no other conceivable accommodation was possible without imposing an undue hardship. We conclude that, on the record before us, the defendant has not met its burden. Accordingly, we vacate the grant of summary judgment and remand the case for further proceedings consistent with this opinion.

1. Statutory scheme. General Laws c. 151B, § 4(1A), provides, in relevant part:

"It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate or [forgo] the practice of, his creed or religion as required by that creed or religion ... and the employer shall make reasonable accommodation to the religious need of such individual.... `Reasonable Accommodation', as used in this subsection shall mean such accommodation ... as shall not cause undue hardship in the conduct of the employer's business."

The statute sets out an important public policy interest in prohibiting discrimination against individuals for their sincerely held religious beliefs, Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 195, 804 N.E.2d 894 (2004), and mandates that its provisions "be construed liberally for the accomplishment of its purposes." G.L. c. 151B, § 9, first par. Nevertheless, the statute's undue hardship provision balances the interests of employers with that of religious employees. Opinion of the Justices, 423 Mass. 1244, 1247, 673 N.E.2d 36 (1996). The statute's nonexhaustive list defining undue hardship "illustrates the types of accommodation that constitute excessive interference with an employer's business affairs." Massachusetts Bay Transp. Auth. v. Massachusetts Comm'n Against Discrimination, 450 Mass. 327, 337, 879 N.E.2d 36 (2008) (MBTA).²

A three-part inquiry applies where an employee claims discrimination based on religion. New York & Mass. Motor Serv., Inc. v. Massachusetts Comm'n Against Discrimination, 401 Mass. 566, 575-576, 517 N.E.2d 1270 (1988). The employee bears the initial burden of establishing a prima facie case that the employer required the employee to violate a required religious practice. Id. at 576, 517 N.E.2d 1270. The employee also must "demonstrate that he or she gave the employer the required notice of the religious obligations." Id. If the employee makes this prima facie case, the burden then shifts to the employer "to prove that accommodation of the [employee's] religious obligations would impose ... an undue hardship" pursuant to the statute. Id. In determining whether an employer has met its burden of proving undue hardship, the focus is on the particular nature and operations of its business. Id. Moreover, "[a]n employer's mere contention that it could not reasonably accommodate an employee is insufficient...." MBTA, supra at 336, 879 N.E.2d 36.

2. Background. On summary judgment, we view the facts and inferences drawn therefrom in the light most favorable to the nonmoving party. Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451, 258 N.E.2d 733 (1970).

The plaintiff worked in Hadley as a lube technician for a Jiffy Lube service station that was owned by the defendant (Jiffy Lube). The plaintiff worked on motor vehicles in the upper and lower bays. When he worked in the upper bay he also worked as a greeter, salesperson, and cashier.

In 2001, Richard Smith became the defendant's new vice-president in charge of Jiffy Lube. Smith avers that he hired a consultant to help him develop strategies to improve sales and attract new customers to Jiffy Lube. As a result, in January, 2002, Smith instituted a grooming policy that stated, "[C]ustomer-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." Other businesses owned by the defendant, including a retail gasoline station and convenience store, a restaurant, and a car wash, did not implement similar policies.

The plaintiff is a practicing Rastafarian. His religion, to which he has adhered since 1991, does not permit him to shave or cut his hair. In light of the grooming policy, the plaintiff told Jiffy Lube's manager and assistant manager that he wished to maintain customer contact without having to shave or cut his hair. The plaintiff's concerns were communicated to Smith, who stated that if the plaintiff did not comply, he would be allowed to work only in the lower bay and could not have customer contact. The plaintiff also made his concerns known directly to Smith, who stated, according to the plaintiff, that he did not have time to check people's religions.

Once the policy was implemented, the plaintiff worked solely in the lower bay with no formal customer contact. The plaintiff remained a lube technician and received a merit pay increase in January, 2002. However, the plaintiff asserts that the working conditions in the lower bay were significantly worse than the upper bay, including that it was much colder in the winter, and more dangerous.³ Because he was the sole lower bay employee on his shift, he could not take breaks and "many times" was the "last person at lunch." There was no alternative to working in the lower bay if he wanted to keep his job. He also states that he saw many lube technicians who had grease on them when they had customer contact. The plaintiff ceased working for Jiffy Lube in May, 2002, which, according to the judge, was for reasons unrelated to the litigation.

3. Discussion. Summary judgment is appropriate where there are no genuine issues of material fact and the record before the court entitles the moving party to judgment as a matter of law. Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397, 636 N.E.2d 265 (1994).

In her written memorandum of decision, the judge stated that the sincerity of the plaintiff's religious beliefs are not disputed by the defendant and that the plaintiff did inform the defendant of the requirements of his religion. The judge also concluded that the change in the plaintiff's job responsibilities was substantial enough for the plaintiff to meet his burden to show a prima facie case of discrimination due to his religion. The judge did not discuss directly whether the job change itself was a reasonable accommodation. Rather, the judge addressed the issue of undue hardship, focusing on "whether the employer could have exercised its managerial discretion in such a way that the employee's religious obligations could have been reasonably accommodated." New York & Mass. Motor Serv., Inc. v. Massachusetts Comm'n Against Discrimination, supra at 576, 517 N.E.2d 1270.

The judge noted that no Massachusetts case has addressed the employer's burden of proof of undue hardship where grooming policies were the basis of a religious discrimination claim under G.L. c. 151B, § 4(1A). Therefore she relied on Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 138 (1st Cir.2004), cert. denied, 545 U.S. 1131, 125 S.Ct. 2940, 162 L.Ed.2d 873 (2005) (Cloutier), where the United States Court of Appeals for the First Circuit addressed undue hardship and a grooming policy pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), as well as under G.L. c. 151B.⁴ As the judge discussed in her decision, Cloutier involved an employee who claimed that the policy of the employer in that case, banning facial piercings for employees who interacted with customers, violated her religious beliefs. The court held that an outright exemption to the grooming policy was an undue hardship as a matter of law. Id. at 136. Noting that "employees reflect on their employers," the court stated that other courts have "upheld dress code policies that ... are designed to appeal to customer preference or to promote a professional image." Id. at 135, 136. Applying these principles, the court concluded that allowing that employee the outright exemption she requested would deny the employer the ability to demand compliance and to control its public image. Id. at 137. In the absence of a Massachusetts case on which it could rely, the court also applied these principles to the...