A service station technician claims his former employer’s grooming policy, which prohibited facial hair, discriminated against him due to his religion.

Bobby Brown was employed by a Jiffy Lube in Massachusetts. He worked on vehicles and doubled as a salesperson, greeter and cashier.

The Jiffy Lube franchise owner brought in a consultant to determine how to improve business.

Among the recommendations was that the shop institute a grooming policy for its employees who had customer contact.

The policy stated, “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 is a Rastafarian, a religion he had adhered to for ten years. The religion does not permit him to shave or cut his hair.

The employee told the Jiffy Lube’s manager that he wanted to maintain customer contact without having to shave or cut his hair.

The manager told him if he didn’t comply with the new grooming policy, he’d only be allowed to work in the lower bay and could not have customer contact.

Undue hardship?

In response to his lawsuit, the Jiffy Lube argued that allowing an exemption to its grooming policy would be an undue hardship because it had a right to control its public image.

In a deposition, the owner presented evidence that sales increased after the grooming policy went into effect.

However, the Massachusetts Supreme Judicial Court said the evidence was insufficient to show increased profitability was caused by the policy, so Jiffy Lube did not prove it had an undue hardship.

The court remanded the case back to a lower court to determine whether assigning Brown to the lower bay where he’d have no customer contact was a reasonable accommodation.

Religious appearance requirements may include hair, yarmulkes, veils and even the mark on the forehead that denotes Ash Wednesday. What do you think about this case and the potential conflict between workplace grooming rules and religious freedom? Let us know via the Comments Box below.

Brown v. F.L. Roberts & Co., Massachusetts Supreme Judicial Court, No. 10155, 12/2/08. You can click here to download the court’s decision.

Reason: The supervisor didn’t know the employee has a form of autism.

Thomas Mangano was hired as director of manufacturing by software firm Verity, Inc.

Steven Springsteel became his supervisor.

Mangano didn’t like it when Springsteel would call him “Rain Man” in front of co-workers.

Then, Mangano was passed over for a promotion to vice president of manufacturing and operations.

Months later, he was diagnosed with Asperger’s syndrome, a form of autism.

After receiving that diagnosis, Mangano sued Verity and Springsteel, alleging disability discrimination and “verbal harassment” based on a perceived disability in violation of California’s Fair Employment and Housing Act (FEHA).

Trial and appeals courts both ruled for the company.

FEHA states that a mental disability includes being regarded or treated by the employer as having any mental condition that makes achievement of a major life activity difficult.

The court said Verity showed it had legitimate business reasons for hiring a vice president from outside the company and that Mangano didn’t show those reasons were a pretext for disability discrimination.

On the harassment claim, the court said annoying or merely offensive language in the workplace isn’t actionable. 

Another factor in this case: Mangano wasn’t diagnosed with Asperger’s until after he was passed over for the promotion. The company didn’t know about his disability when it made its choice for vice president.

63-year-old Bonita Brady of Lansing, MI, is suing AARP, formerly known as the American Association of Retired Persons, for age discrimination.

She claims the group passed her over for a series of jobs because of her age.

Brady says she lost her job in a reorganization and was passed over for nine vacancies.

She’s seeking $25,000 in damages.

To her manager, Jolyn McDonald was known as Grandma: Was it just a nickname or age discrimination? 54-year-old McDonald worked 17 years at a Best Buy store in Illinois, eventually rising to the position of customer service manager. She’d received years of positive performance reviews.

After Best Buy adopted a new business model, McDonald’s store manager gave her a written warning for failing to adapt to the new standards.

McDonald was put on a performance improvement plan and was told that the company had higher expectations of her compared with others in her position because of her number of years with the company.

When a new store manager took over, he started calling her “Grandma” in front of other employees.

Not long after that, McDonald was told she was being demoted because of poor performance by her staff.

She quit and filed an Age Discrimination in Employment Act (ADEA) lawsuit. Employees must prove either direct age discrimination or “circumstantial evidence” that suggests discrimination. McDonald argued the nickname made the case for circumstantial evidence.

Best Buy argued “Grandma” wasn’t an age-related nickname because people under 40 could be grandparents, too. It used that argument to try to get the case thrown out of court.

‘Grandma’ wins her argument

The court ruled in McDonald’s favor, saying a reasonable jury could conclude that age discrimination was a reason for her demotion. In the court’s words, she was “unquestionably labeled with the moniker because of her age or personal characteristics properly associated with persons of an older generation.” Being held to a higher standard than employees under 40 with fewer years experience was also a factor in the court’s decision to deny the company summary judgment.

The next step for this case is a jury trial. However, companies often decide to settle out of court rather than spend the time, resources and expense on a jury trial. A loss could mean an expensive jury award.

Have you ever had a problem at your company because of employees’ nicknames? Has ageism been an issue? Let us know in the Comments Box below.

Mirren, a 16-year-old from Glasgow, Scotland, filed an age-discrimination claim with the employment tribunal there. The tribunal threw out his claim, saying he wasn’t hired because he didn’t show up for the interview, not because of age discrimination, according to the newspaper, The Scotsman.

Spotless Commercial Cleaning said it invited Mirren to its office for an interview. When he failed to show up, the company contacted his home where he explained he didn’t know how to get the the office.

Spotless gave him directions — just a 20-minute car ride away. He still didn’t show up.

The teen told the newspaper he still thinks he’s right — that he was discriminated against because of his age.

A spokeswoman for tribunal calls this the most bizarre case its ever been involved in. 

Does your workplace dress code address personal features such as facial hair, makeup, tattoos and piercings? Whether such policies are discriminatory continues to be an issue, as the city of Houston is finding out.

Houston doesn’t allow its police officers to have beards. Actually, they can have beards, but if they do, they can’t wear the city police uniform. Four bearded officers on the force are on plain clothes duty.

Four African American officers have filed a federal civil rights lawsuit against the city, claiming discrimination because shaving triggers a skin condition that disproportionately affects black men.

Men with pseudofolliculitis barbae (PFB) suffer rashes, ingrown hairs, infection, bleeding and scarring from shaving.

The officers claim that since they can only do plain clothes police duties it impacts their earning potential.

Recently, Houston City Council voted to allocate up to $150,000 to fight the officers’ suit, despite some council members’ questioning of the no-beard policy itself.

Houston Police enacted the no-beard rule for officers in 1993 so uniformed officers look conservative and professional, according to a city memo.

The Houston Chronicle reports that the policy wasn’t regularly enforced until after Sept. 11, 2001. After 9/11, all uniformed officers received gas masks, and beards sometimes prevent adequate seals when wearing the safety gear.

Three of the bearded officers say they’ve tested the gas masks and got good seals. They also claim the department could buy some different masks that work with beards.

What the courts have said

Federal courts have ruled that personal appearance rules in and of themselves aren’t illegal.

However, affected employees have to show discrimination in one of the areas protected by federal law — gender, age, race or national origin, color, religion, and disability.

For example, the Sikh religion requires men to wear beards. Some Orthodox Jewish men also wear beards as part of religious observance.

State and local laws may preclude employers from implementing such dress and appearance policies or add other categories, such as sexual orientation, to the federal list. Union contracts also have to be considered.

The argument by the Houston police that the policy affects their earnings potential may be a key to the court’s decision.

In Fitzpatrick v. City of Atlanta, a group of African American firefighters, who were told they had to shave their beards, filed suit against the city using the same argument that they suffered from PFB.

The court rejected their disparate race claim because the City’s grooming requirement was based on a legitimate business necessity, that the firefighters had to have good seals on their respiratory equipment.

In other employee appearance cases, showing that the policy discriminated against a protected class and proving that it caused financial hardship is a combination that swayed judges to rule against the employer.

HR Blunders will follow the Houston police case and let you know how it turns out.

Does your company have rules about employee appearance that go beyond how they dress? Let us know.

What happens when one employee assaults another – verbally? It’s tricky for employees to win cases alleging hostile workplace environments when no form of discrimination is involved. But that might be changing.

What consitutes assault and intentional infliction of emotional distress – better known as “workplace bullying?”

A recent court ruling shows that the bar is set pretty low when it comes to proving that an employer has a worker who engages in bullying.

A perfusionist (a type of medical technician) at a hospital filed a civil assault claim against a surgeon who publicly berated him in an operating room.

The plaintiff said the surgeon was angry at him because of reports to hospital administrators about the way the doctor treated other perfusionists.

In testimony, the perfusionist said the surgeon aggressively and rapidly advanced toward him, screaming and swearing. He felt the doctor was going to hit him but stopped short, saying, “You’re finished. You’re history.”

A jury awarded the plaintiff $325,000. But the surgeon appealed on the grounds that the jury was not instructed that “workplace bullying” wasn’t an issue for the jury’s consideration.

The Indiana Supreme Court disagreed, saying “It is an assault to shake a fist under another’s nose,” even without striking a person.

The court also said, “The phrase ‘workplace bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury.”

Oddly enough, the attempt to keep the hot topic of workplace bullying out of this case had just the opposite effect. The court’s decision has drawn the attention of many in the legal community as an acknowledgment by the court of workplace bullying as a phenomenon and a legal term. Some are calling this the first real court case about workplace bullying.

The Indiana court even provides a partial definition of workplace bullying in its written opinion: “Workplace bullying could be considered a form of intentional infliction of emotional distress.”

New laws could bring changes

In this case, the bullied person sued his co-worker instead of his employer. That was likely a decision made by the perfusionist’s legal counsel, because when faced with lawsuits charging hostile work environments, courts look for hostility based on race, religion, gender, age or another category protected by civil rights laws.

However, employees may soon be able to sue their employers instead, even when there’s no discrimination involed.

At least 13 states are considering anti-workplace-bullying laws, often called “healthy workplace” bills.

The laws would allow people to sue their employers for bullying or offensive behavior even when the conduct isn’t connected to discrimination.

Employment lawyers predict such laws would produce a huge number of bullying lawsuits.

And plenty of people think they’ve been bullied at work. A Zogby poll conducted for Workplace Bullying Institute shows 37% of U.S. workers believe they’ve been bullied at work.

Most of the bills introduced are based on a draft by law professor David Yamada. His version would not only allow employees to sue over bullying bosses. It would also premit lawsuits in cases of backstabbing and sabotaging by co-workers.

Yamada’s draft bill also provides encouragement for employers to handle bullies. The bill says employers have a defense if they use reasonable care to prevent or correct the problem and employees fail to avail themselves of those measures.

No one likes a workplace bully. But what can companies do about them? What can you do as an HR professional? Tell us about experiences you’ve had, or comment about the Indiana case or the impending laws.