Question: Bradley v. Pizzaco of Nebraska, Inc., d/b/a Domino's Pizza 7 F.3d 795 (8th Cir. 1993)

Employee brought a race discrimination case against his employer after being discharged for failure to comply with the employer's policy requiring employees to be clean-shaven. The court held that the policy had a disparate impact on African Americans and violated Title VII.

Bowman, J.

This action arose out of a Title VII employment discrimination claim brought by Langston Bradley, a former Domino's delivery man. Bradley alleged that Domino's discriminated against him on the basis of race when it fired him for failure to appear clean-shaven in compliance with the company's no-beard policy. The no-beard policy is established nationwide by Pizzaco's franchiser, Domino's Pizza, Inc. Bradley alleged that he suffered from pseudofolliculitis barbae ("PFB"), a skin condition affecting approximately fifty percent of African American males, half of which number cannot shave at all. Bradley claimed that the no-beard policy deprived him and other African American males suffering from PFB of equal employment opportunities in violation of Title VII of the Civil Rights Act of 1964.

Domino's offered the testimony of Paul D. Black, Domino's vice president for operations. Black said it was "common sense" that "the better our people look, the better our sales will be." Black also cited a public opinion survey indicating that up to 20 percent of customers would "have a negative reaction" to a delivery person wearing a beard. Further, Black speculated that Domino's would encounter difficulty enforcing any exceptions to their dress and grooming code. Black did not offer evidence of any particular exception that was tried without success; rather, he merely stated that monitoring the hair length and moustaches of employees at five thousand Domino's locations is difficult. Black's testimony was largely speculative and conclusory.

Such testimony, without more, does not prove the business necessity of maintaining the strict no-beard policy. In addition to Black's testimony, Domino's offered the results of a public opinion survey it commissioned. The survey purported to measure public reaction to beards on pizza shop employees. The survey showed that up to 20 percent of those surveyed would react negatively to a delivery man wearing a beard. Even if the survey results indicated a significant customer apprehension regarding beards, which they do not, the results would not constitute evidence of a sufficient business justification defense for Domino's strict no-beard policy. Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence.

Customer preference may only be taken into account when it goes to a matter affecting the company's ability to perform the primary necessary function or service it offers, rather than a tangential aspect of that service or function. The existence of a beard on the face of a delivery man does not affect in any manner Domino's ability to make or deliver pizzas to their customers. Customer preference, which is at best weakly shown by Domino's survey, is clearly not a colorable business justification defense in this case. Significantly, the survey makes no showing that customers would order less pizza in the absence of a strictly enforced no-beard rule. Domino's is free to establish any grooming and dress standards it wishes; we hold only that reasonable accommodation must be made for members of the protected class who suffer from PFB. We note the burden of a narrow medical exception for African American males who cannot shave because of PFB appears minimal. The employer, of course, should not be precluded from requiring that any beards permitted under this narrow medical exception be neatly trimmed, clean, and not in excess of a specified length. REVERSED and REMANDED.

1. If you had been the manager, would you have been surprised at this case outcome? Explain.

2. Why do you think Pizzaco had a no-beard policy? What purpose did it serve? Was there another way to get what Pizzaco may have wanted by instituting the policy?

3. Did stereotypes play a role in this policy? What role should stereotypes play in developing workplace policies?