March/April 2009 - Boston Bar Association

practices, Brown explained that he wished to maintain
customer contact without having to shave or cut his hair,
but the company rejected his request.
Brown sued. The parties filed cross-motions for summary
judgment. At that stage, the Superior Court concluded that
Brown had asked for a total exemption from the grooming
policy and held that, as a matter of law, an exemption from
the policy would constitute an undue hardship because the
company had the right to control its public image. Brown
appealed and the SJC granted Brown’s application for direct
appellate review. The sole issue presented by the parties
was undue hardship.
In support of the Superior Court’s decision, Jiffy Lube
argued that Brown had requested a total exemption from
the grooming policy, which request foreclosed its ability to
exercise its managerial discretion in a way (short of a total
exemption) that would have reasonably accommodated
Brown. Jiffy Lube also argued that an exemption from a
grooming policy constituted an undue hardship as a matter
of law.
The SJC disagreed. Four points emerge from its decision.
First, the decision clarifies that even were an employee to
request a total exemption from a grooming policy (thereby
purportedly foreclosing managerial discretion to offer
another accommodation), nonetheless such a request
would not relieve the employer of its obligation to provide a
reasonable accommodation unless it can prove undue
hardship. To the contrary, the Court emphasized that
section 4(1A) mandates that as soon as the employer is on
notice of a conflict between a policy and an employee’s
religious practice, the employer must either prove undue
hardship or provide a reasonable accommodation. In other
words, an employer may not avoid its obligation reasonably
to accommodate an employee’s exercise of religion simply
by stating that the accommodation suggested by the
employee would constitute an undue burden. The Court
noted that to hold otherwise would shift the statutory
burden entirely to the employee, eviscerating the statutory
requirement that an employer provide a reasonable accommodation.
Jiffy Lube, 452 Mass. at 683 (citing Marquez, 450
Mass. at 341).
Second, the decision reaffirms that although a failure to
engage in the interactive process is not, itself, necessarily a
violation of the statute, a failure to do so may nevertheless
be fatal to the employer’s position. Here, because the
employer did not explore other potential reasonable
accommodations, it could not establish that the employee’s
suggested accommodation was the only possible accommodation
and, therefore, it could not show that no other
conceivable accommodation was possible without undue
hardship. “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.” Jiffy Lube, 452 Mass. at 682.
Accord Marquez, 450 Mass. at 342.
Third, the decision confirms that an exemption from a
grooming policy does not constitute an undue hardship as a
matter of law because, in the absence of an interactive
dialogue, an employer is required to “conclusively demonstrate
that all conceivable accommodations would impose
an undue hardship on the course of its business.” Jiffy Lube,
452 Mass. at 687 (citing Marquez, 450 Mass. at 342). Such a
demonstration is a factual inquiry and cannot be decided as
a matter of law.
Finally, the Jiffy Lube decision clarifies that a mere claim
of non-economic costs concerning public image is not
sufficient to demonstrate undue hardship; proof of undue
hardship is required. To hold otherwise, the Court noted,
would upset the statute’s deliberate and important balance
between employer interests and employee needs: “Requiring
proof of undue hardship protects against the misuse of
‘public image’ [as a defense to a failure to accommodate],
and is consistent with the requirement that the statute be
construed liberally to accomplish its ends.” Jiffy Lube, 452
Mass. at 686. Otherwise, “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.” Jiffy Lube, 452 Mass. at 686
(quoting Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7, 17
(D. Mass. 2006)). Finding that Jiffy Lube presented insufficient
evidence of undue hardship, the SJC vacated the
award of summary judgment to the employer and remanded
the case.
Conclusion
The SJC’s Marquez and Jiffy Lube decisions provide
guidance as to the contours of an employer’s obligations
reasonably to accommodate. Given the unanimity of the
decisions, the strong language the SJC used in affirming
the consequences of the legislative language shifting the
burden to the employer to prove undue hardship, and the
consequences of the employers’ failure to engage in the
interactive process (even though such interactive process is
not, itself, a stand-alone violation of Chapter 151B), employers
would do well to take seriously employee requests for
reasonable accommodation of their religious practices. n
e n d n o t e s
1. On July 22, 2008, the EEOC issued a new Compliance Manual section on
workplace discrimination on the basis of religion in violation of Title VII.
See EEOC Directives Transmittal No. 915.003, Section 12, Religious
Discrimination (July 22, 2008). Although not controlling with regard to the
interpretation of state law, the Compliance Manual nonetheless provides
additional guideposts to reasonable accommodation of religious practices
in the workplace.
2. To establish a prima facie case of an employer’s failure reasonably to
accommodate a religious practice under G.L. c. 151B, § 4 (1A), a complainant
must demonstrate that an employer required an employee to violate a
religious practice required by the employee’s sincerely held belief as a
condition of employment and that the employee provided the employer
with at least ten days’ notice of the employee’s scheduling needs. New York
& Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination,
401 Mass. 566, 575-576 (1988); Cloutier v. Costco Wholesale Corp., 390 F.3d
126, 138 (1 st Cir. 2004), cert. denied 545 U.S. 1131 (2005).
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