Kohli v. LOOC, Inc.

• Decision Date: 01 September 1994
• Docket Number: No. 765,765
• Citation: 103 Md.App. 694,654 A.2d 922
• Parties: , 66 Empl. Prac. Dec. P 43,497 Prabhjot S. KOHLI v. LOOC, INC. d/b/a Domino's Pizza, et al. ,
• Court: Court of Special Appeals of Maryland

Page 694

103 Md.App. 694

654 A.2d 922, 66 Empl. Prac. Dec. P 43,497

Prabhjot S. KOHLI v. LOOC, INC. d/b/a Domino's Pizza, et al.

No. 765, Sept. Term, 1994.

Court of Special Appeals of Maryland.

March 2, 1995.

Stephen W. Godoff (Godoff & Zimmerman, on the brief), Baltimore, for appellant.

Kathleen Pontone, Baltimore (Gary B. Eidelman, Miles & Stockbridge, Baltimore, Francyne B. Stacey and Pear, Sperling, Eggan & Muskovitz, P.C., Ann Arbor, MI, on the brief), for appellees.

Argued before DAVIS, HARRELL and HOLLANDER, JJ.

HARRELL, Judge.

Prabhjot S. Kohli, appellant, filed a complaint with the Maryland Commission on Human Relations ("the Commission"), alleging religious discrimination arising out of the failure of LOOC, Inc. d/b/a Domino's Pizza ("LOOC"), and Domino's Pizza, Inc. ("DPI"), ¹ appellees, to hire him due to his refusal to shave the beard he wore for religious purposes. An Administrative Law Judge (ALJ) from the Office of Administrative Hearings determined that appellees had failed to meet their burden of demonstrating that they would suffer undue hardship if they were required to accommodate appellant's religious practice. The Appeal Board of the Commission reversed the Provisional Order of the ALJ and dismissed the complaint. The Circuit Court for Baltimore County affirmed the Appeal Board, prompting this appeal.

ISSUES

Appellant presents the following challenges to the Appeal Board's decision:

I. Did the Appeal Board disregard arbitrarily, capriciously and erroneously as a matter of law the standard of review that it was legally bound to apply, when it set aside the administrative law judge's conclusion that appellees had failed to prove that it would suffer undue hardship if it accommodated appellant by permitting him to wear a beard net or snood ²?

II. Is the Appeal Board's decision supported by competent, material and substantial evidence, in light of the entire record as submitted, insofar as it concluded that appellees had met their burden of demonstrating that they could not accommodate appellant's religion without undue hardship on the conduct of their business?

We answer appellant's first question in the affirmative, that is that the Appeal Board, in overturning the decision of the Administrative Law Judge, disregarded its own standard of review as set forth in the rules of procedure of the Commission on Human Relations. Accordingly, we shall reverse without reaching appellant's other query.

FACTS

On 14 December 1987, Prabhjot S. Kohli, appellant, applied for a managerial position with one of LOOC's Domino's Pizza stores in Baltimore County. Mr. Kohli was granted an interview, but was denied employment after he refused to shave off the beard he wore for religious reasons. ³ Appellant explained to his prospective employer that cutting one's body hair is forbidden under the tenets of Sikhism, the religion of which he was a devout member. ⁴ Nevertheless, the LOOC official conducting the interview informed Kohli that he could not be offered the position because of the company's policy, promulgated by DPI, that did not permit the hiring of bearded persons.

Domino's has implemented strict grooming standards that, without exception since 1980, prohibit its employees from wearing beards. DPI's stated reason for having a no-beard policy is based upon its concern that hair may get into food, as well as its belief that a customer may be reluctant to purchase from a food service establishment whose employees are not clean shaven. Compliance with the policy is considered especially important for Domino's store managers, whose job requires constant contact with both food and the public. The manager is responsible for overseeing the store's food-making, baking pizzas, oven tending, and delivery. In addition, managers answer telephones, deliver pizzas, and handle customer complaints. The policy is further grounded in the belief that the corporate image will be best promoted through a uniformity of its market image as well as consistent standards for the professional appearance of its employees. The express concern is that to allow certain employees to maintain beards would interfere with the corporate reputation and hurt sales.

Appellant requested an accommodation from LOOC due to his religion. The interviewer responded that the grooming policy was strictly enforced and that no deviation was possible. Mr. Kohli thereafter telephoned DPI's corporate headquarters office on 22 December to explain his situation, but received the same response. That office informed appellant that he could take up the matter with DPI's legal department, which prompted Kohli to mail a letter reiterating his request for an accommodation. That request was also denied, despite his willingness to wear a beard snood or net while working, in lieu of having to shave off his facial hair.

In February 1988, Mr. Kohli filed a complaint against Domino's with the Maryland Commission on Human Relations. General counsel for the Commission filed a statement of charges on behalf of Mr. Kohli, alleging that Domino's had engaged in unlawful employment discrimination in declining to hire appellant. Mr. Kohli was permitted to intervene, and was represented by his own counsel. Specifically, the complaint alleged that appellees' refusal to accommodate appellant's religious belief by permitting an exception to their grooming policy constituted an act of religious discrimination in violation of Md.Code Ann., Art. 49B, § 16(a). That section provides, in pertinent part, that "[i]t shall be an unlawful employment practice for an employer: (1) To fail or refuse to hire ... any individual ... because of such individual's ... religion ..." Section 15(f) of the same subtitle defines religion as "includ[ing] all aspects of religious observances and practice, as well as belief, except in those cases when the observance, practice, or belief cannot be reasonably accommodated by an employer without causing undue hardship on the conduct of the employer's business." In response, Domino's contended that its no-beard policy was justified by business necessity and that Mr. Kohli could not be accommodated without causing undue hardship to the companies' business.

The Administrative Law Judge's Decision

A public hearing was conducted before an ALJ on 10-13 June 1991. Thirteen witnesses testified at the hearing, and numerous exhibits were admitted into evidence. Domino's did not challenge appellant's protected status. The ALJ initially found, in her 30 March 1992, forty-seven page provisional order and opinion, that the Commission had established a prima facie case of religious discrimination by showing that (1) Kohli belonged to a protected class; (2) he had applied for and was qualified for the job sought; (3) he was rejected for the position despite his qualifications; (4) he held a bona fide religious belief, which he communicated to the employer; and (5) the employer continued to solicit applications from other qualified applicants following Kohli's rejection.

In considering whether appellees had met their burden of demonstrating that the accommodation of appellant would have caused them undue hardship, the ALJ heard testimony from various expert and corporate witnesses that business would be lost if Domino's were to provide an accommodation. In support of appellees' position, DPI presented the results of two studies it had commissioned to determine the attitudes of customers toward employees wearing beards ("The Beard Perceptions Study") and those wearing a beard snood ("The Beard Snood Perceptions Study"). William Denck, a market research consultant from MARC (the firm that conducted the studies), testified as the sole expert concerning the conclusions to be drawn from the surveys. The ALJ made the following pertinent findings of fact with respect to these studies (we shall use the ALJ's number identification for each of her findings of fact discussed in our opinion):

67. The Beard Study was conducted by MARC, a marketing research company, through use of a questionnaire. The company selected a sample of the country, consisting of 600 males and females, aged 18-65, who had purchased pizza from a restaurant within three months. The margin of error for the study is +3.9%. The participants in the study were asked to respond to questions which focused on three types of beards (2 inch beard, 1/2 inch beard, and 1mm stubble).

68. Results of the study showed that customers felt that beards of varying lengths on pizza employees were troublesome. However, 55% of the participants stated that they would purchase pizza from a bearded employee. Forty-five percent of the participants stated that they would be more likely to purchase pizza from a restaurant where all the employees were clean shaven. These participants identified sanitation and cleanliness as factors affecting their future purchase intent.

....

71. In 1990, DPI commissioned another beard survey from MARC, known as the Beard Snood Perception Study (Snood Study). The purpose of the Snood Study was to determine the future purchase intent of customers if they saw an employee wearing a beard snood over a beard. The Snood Study was conducted at six shopping malls throughout the United States to achieve geographical diversity. Using a two-cell design, 150 people were exposed to a clean shaven Domino's employee, while 150 people were shown a picture of the same employee with a beard and beard snood. The purpose of the cell with the clean shaven employee was to control the participants' reaction to the employee's appearance for reasons other than the beard snood. The results of the study showed that, at the 99% level of confidence, that [sic] 16% of the participants said that they definitely/probably would not buy pizza in the future if they saw a bearded employee wearing a beard snood. 7.3% of the participants shown the picture of a clear [sic] shaven employee said they definitely/probably would...