For the second time in less than a year, Domino's no-beard policy has been ruled
discriminatory. In the recent case of Bradley v. Pizzaco of Nebraska, d/b/a Domino's
Pizza, 1993 WL 417845 (8th Cir. 1993), the U.S. Court of Appeals for the Eighth Circuit
held that Domino's failed to prove that a business justification existed for its no-beard
policy. Earlier in the proceedings the no-beard policy was found to have a disparate
impact on African American males suffering from pseudofolliculitis barbae
("PFB"), a skin condition which often makes shaving difficult and painful.
Approximately six years ago, Bradley was employed as a pizza delivery man by a Domino's franchise. After refusing to comply with the Company's nationwide no-beard policy, Bradley was discharged. He then initiated a Title VII lawsuit, alleging that the no-beard policy has a disparate impact on African American males who, like himself, suffer from PFB. At trial, Bradley presented medical evidence showing that approximately 50% of all African American males suffer from this condition, and claimed that the policy deprived him and other African American males of equal employment opportunities. The Equal Employment Opportunity Commission (the "EEOC") joined the lawsuit as a plaintiff.
The trial court found in favor of Domino's, holding that Bradley and the EEOC failed to show that the no-beard policy had a disparate impact on African American males. In addition, the court found that medical evidence indicated that Bradley suffered from only a mild case of PFB and that he was able to shave without discomfort. Based on these findings, the court held that Bradley was not entitled to individual relief. On appeal, the Eighth Circuit affirmed the dismissal of Bradley's individual claim, but reversed the finding that the EEOC had not made out a prima facie case of disparate impact, remanding that part of the case to the district court for a determination of whether Domino's has a business justification defense for its no-beard policy. On remand, the district court performed the business justification analysis and again found in favor of Domino's.
The EEOC again appealed, claiming that the district court had utilized an incorrect standard. The Eighth Circuit agreed and held that under the Civil Rights Act of 1991, Domino's had a heavy burden of proving a compelling need for its no-beard policy, and that there is no alternative that would not produce a similar disparate impact. The court found that despite six years of litigation, Domino's failed to prove that a business justification existed for its no-beard policy, calling the testimony of a Domino's vice president that "sales would be better if employees looked better," speculative and conclusory. The court also indicated that customer preference surveys, similar to the ones relied upon by Domino's, are generally disfavored as being insufficient to support a business justification defense.
In short, the Court of Appeals concluded that the existence of a beard on a man does not affect his ability to deliver pizza, and that Domino's made no showing that customers would order less pizza in the absence of the no-beard rule. Moreover, the court found that Domino's made no showing that there are no workable alternatives to the no-beard policy. The court limited its holding, however, by emphasizing that Domino's is only required to provide a narrow medical exception to its no-beard policy, and that nothing precludes the Company from requiring that beards allowed under the exception be neatly trimmed, cleaned and not in excess of a specified length. This decision is consistent with a 1992 ruling of the Maryland Human Rights Commission, described in the July, 1992 issue of the WLU, which ordered Domino's to make a reasonable accommodation in its no-beard policy for persons who refused to shave on religious grounds.
Approximately six years ago, Bradley was employed as a pizza delivery man by a Domino's franchise. After refusing to comply with the Company's nationwide no-beard policy, Bradley was discharged. He then initiated a Title VII lawsuit, alleging that the no-beard policy has a disparate impact on African American males who, like himself, suffer from PFB. At trial, Bradley presented medical evidence showing that approximately 50% of all African American males suffer from this condition, and claimed that the policy deprived him and other African American males of equal employment opportunities. The Equal Employment Opportunity Commission (the "EEOC") joined the lawsuit as a plaintiff.
The trial court found in favor of Domino's, holding that Bradley and the EEOC failed to show that the no-beard policy had a disparate impact on African American males. In addition, the court found that medical evidence indicated that Bradley suffered from only a mild case of PFB and that he was able to shave without discomfort. Based on these findings, the court held that Bradley was not entitled to individual relief. On appeal, the Eighth Circuit affirmed the dismissal of Bradley's individual claim, but reversed the finding that the EEOC had not made out a prima facie case of disparate impact, remanding that part of the case to the district court for a determination of whether Domino's has a business justification defense for its no-beard policy. On remand, the district court performed the business justification analysis and again found in favor of Domino's.
The EEOC again appealed, claiming that the district court had utilized an incorrect standard. The Eighth Circuit agreed and held that under the Civil Rights Act of 1991, Domino's had a heavy burden of proving a compelling need for its no-beard policy, and that there is no alternative that would not produce a similar disparate impact. The court found that despite six years of litigation, Domino's failed to prove that a business justification existed for its no-beard policy, calling the testimony of a Domino's vice president that "sales would be better if employees looked better," speculative and conclusory. The court also indicated that customer preference surveys, similar to the ones relied upon by Domino's, are generally disfavored as being insufficient to support a business justification defense.
In short, the Court of Appeals concluded that the existence of a beard on a man does not affect his ability to deliver pizza, and that Domino's made no showing that customers would order less pizza in the absence of the no-beard rule. Moreover, the court found that Domino's made no showing that there are no workable alternatives to the no-beard policy. The court limited its holding, however, by emphasizing that Domino's is only required to provide a narrow medical exception to its no-beard policy, and that nothing precludes the Company from requiring that beards allowed under the exception be neatly trimmed, cleaned and not in excess of a specified length. This decision is consistent with a 1992 ruling of the Maryland Human Rights Commission, described in the July, 1992 issue of the WLU, which ordered Domino's to make a reasonable accommodation in its no-beard policy for persons who refused to shave on religious grounds.