7 F.3d 795 | 8th Cir. | 1993
This appeal requires us to decide whether the Civil Rights Act of 1991 (the “1991 Act”), 42 U.S.C. § 2000e-2 (Supp. Ill 1991), applies to a case that was pending at the time of its effective date, where the Equal Employment Opportunity Commission (the “EEOC”) is the only remaining plaintiff and seeks relief only in the form of an order requiring the employer prospectively to recognize a narrowly limited medical exception to the employer’s no-beard policy.
I.
The EEOC appeals a judgment entered in favor of defendants Pizzaco of Nebraska, Inc., and Domino’s Pizza, Inc. (collectively “Domino’s”). 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 Piz-zaco’s franchisor, Domino’s Pizza, Inc. Bradley alleged that he suffered from psuedofolli-culitis 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.
After a trial of the entire case, including the question of Domino’s business justification for its strict no-beard policy, the District Court ruled in favor of Domino’s, finding that Bradley and the EEOC failed to show the no-beard policy has a disparate impact on African American males. The court’s opinion did not reach the business justification issue. On appeal, in Bradley v. Pizzaco of Neb., Inc., 939 F.2d 610 (8th Cir.1991) (Pizzaco I), cert. denied, — U.S. -, 112 S.Ct. 933, 117 L.Ed.2d 105 (1992), we reversed the District Court’s finding of no disparate impact. We held that the evidence presented by the EEOC clearly established a prima facie case of disparate impact on African American males and that the District Court erred in finding otherwise. Pizzaco I, 939 F.2d at 613. We affirmed the District Court’s finding that Bradley suffers only a mild ease of PFB and can appear clean-shaven as not clearly erroneous. Bradley thus was not entitled to relief and is no longer a party to the litigation. Because the EEOC sought injunc-tive relief, however, we remanded with directions that the District Court rale on the issue of business justification.
On remand, the District Court analyzed the trial record in light of Wards Cove Packing Co. v. Atonia, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), and found for Domino’s on the question of business justification. Accordingly, the court denied relief to the EEOC and this appeal followed. We reverse and remand for entry of the injunction sought by the EEOC.
II.
The EEOC contends that because it seeks relief from Domino’s ongoing, presently in-place no-beard policy, the 1991 Act governs this case. All that it seeks, the EEOC points out, is the prospective application of the 1991 Act to enjoin a current policy.
III.
The EEOC contends that, on remand following Pizzaco I, the District Court erred by applying the Wards Cove standard to determine the business justification issue. We agree. In the circumstances of this case, Wards Cove was not the applicable legal standard. The relief sought here is prospective only, and the Civil Rights Act of 1991 became effective on November 21, 1991, after we re~nanded for consideration of the business justification issue but long before the District Court's decision on remand was filed on August 19, 1992. The 1991 Act expressly reinstated the law of "business justification" as it existed before Wards Cove was decided. The 1991 Act states in its preamble that it is meant "to codify the concepts of `business necessity' and `job related' enunciated by the Supreme Court in Griggs v. Duke Power Co. and other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio." Civil Rights Act of 1991, Pub.L. No. 102-166, Sec. 3, 105 Stat. 1071 (1991) (citations omitted). Thus, as urged by the EEOC, we hold that the District Court should have applied the standard of proof first enunciated in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), and reinstated by the 1991 Act.
The 1991 Act returned the burden of persuasion regarding business justification to the defendant employer. Under Wards Cove, after the plaintiff established a prima facie case of disparate impact, the defendant employer bore the burden of producing evidence of a legitimate business justification in defense of the challenged policy. The burden of persuasion, however, remained on the plaintiff. Under the Griggs standard, the burden is on the defendant employer to prove both a "compelling need" for the challenged policy, and the lack of an effective alternative policy that would not produce a similar disparate impact. Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 815 (8th Cir.1983) (quoting Kirby v. Colony Furniture Co., 613 F.2d 696, 705 n. 6 (8th Cir.1980) (emphasis omitted)).
Domino's has had its day in court on the business justification issue. Wards Cove was not decided until after the Pizzaco I trial. Griggs was the governing standard at the time of trial and the standard enunciated in Wards Cove was not applied to this case until the District Court did so on remand. Domino's thus had a full and fair opportunity at trial to meet its burden of proof for a business justification defense under the Griggs standard. Accordingly, there is no reason to require a new evidentiary hearing on the business justification issue, as the issue properly can be decided on the existing trial record.
Iv.
The EEOC contends that the record conclusively demonstrates that Domino's has failed to show business justification under Griggs for its inflexible no-beard policy and
The instant case is one in which the interests of judicial efficiency weigh heavily in favor of resolving the business justification issue here and terminating the litigation now. This case dates back over six years and has generated two appeals to this Court and a petition for certiorari to the Supreme Court. The trial record is easily mastered and complete. The relevant business justification standard is not difficult to apply in light of the evidence presented. Thus, we conclude it is appropriate for this Court to determine the business justification issue, eschewing a remand on this issue and bringing this litigation to a close.
Under the Griggs standard prescribed by the 1991 Act, the burden is on Domino's to show a substantial business justification for its strict no-beard policy. This burden is a heavy one. Hawkins, 697 F.2d at 815. Domino's must show "a manifest relationship to the employment in question," Griggs, 401 U.S. at 432, 91 S.Ct. at 854, quoted in Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). Domino's must also show a "compelling need . to maintain that practice and that there is no alternative to the challenged practice." Kirby, 613 F.2d at 705 n. 6 (emphasis omitted) citing United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 308 (8th Cir.1972) (en banc), cert. denied, 409 U.S. 1107, 1116, 93 S.Ct. 900, 913, 34 L.Ed.2d 687, 700 (1973).
We apply Griggs to Domino's evidence concerning the business justification defense.
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. See Hawkins, 697 F.2d at 815 ("An employer cannot rely on purely conclusory testimony by company personnel to prove that a [challenged practice] is job-related and required by business necessity.").
Under the Griggs standard, once the EEOC made out a prima facie case of disparate impact created by the strict no-beard policy (which, as we held in Pizzaco I, the EEOC clearly did here), the burden shifted to Domino’s to establish a business justification defense. Domino’s has not met this burden.
We reverse the District Court’s finding of business justification for Domino’s no-beard policy as applied to PFB sufferers and remand to the District Court for entry of an injunction granting the EEOC the narrow prospective relief it seeks. The injunction shall be carefully tailored to place Domino’s under the minimal burden of recognizing a limited exception to its no-beard policy for African American males who suffer from PFB and as a result of this medical condition are unable to shave. We leave the language of the injunction to the sound discretion of the District Court, informed, we would hope, by proposed language agreed upon by the parties and submitted to the court for its consideration.
. On remand from Bradley v. Pizzaco of Neb., Inc., 939 F.2d 610 (8th Cir.1991) (Pizzaco I), cert. denied, - U.S. -, 112 S.Ct. 933, 117 L.Ed.2d 105 (1992), the District Court did not conduct any additional evidentiary hearing or otherwise take any additional evidence. Thus we need examine only the trial record to decide the question of business justification.
. Even under Wards Cove, Domino's claim of sufficient business justification appears to be on extremely unstable ground. Because we hold that Griggs is the governing standard, we need not reach the question of whether the District Court correctly analyzed the evidence under the Wards Cove standard.