A Critical Historical and Legal Reappraisal of Bhatia v. Chevron U.S.A., INC.: Judicial Emasculation of the Duty of Accommodation

WOLKINSONFINALIZED_SEVEN_UPDATED 9/9/2010 4:47 PM Comments A CRITICAL HISTORICAL AND LEGAL REAPPRAISAL OF BHATIA V. CHEVRON U.S.A., INC.: JUDICIAL EMASCULATION OF THE DUTY OF ACCOMMODATION Sarah Abigail Wolkinson* I. INTRODUCTION Perhaps the most important and commonly cited case by courts and legal commentators that addresses an employer’s duty to accommodate an employee’s religious beliefs where the employer raises safety issues is the Ninth Circuit's decision in Bhatia v. Chevron U.S.A., Inc. 1 Pursuant to what it believed were requirements of California's Occupational Safety and Health Act (Cal/OSHA), Chevron adopted a policy requiring all machinists to shave off any facial hair interfering with the ability to achieve a gas-tight face seal with a respirator.2 When Bhatia, a machinist and a member of the Sikh religion, refused to shave, he was demoted.3 Finding that Chevron’s safety concerns were legitimate, the court ruled that accommodating Bhatia’s request to maintain his bearded appearance would subject the * University of Pennsylvania Law School, J.D. 2010; University of Michigan, B.S. 2007. The author wishes to thank Professor Benjamin W. Wolkinson, Michigan State University, School of Labor and Industrial Relations, for his substantial support and guidance. 1. Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984); see, e.g., Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004) (citing Bhatia) (“Such regulations are often justified with regard to safety concerns.”); 3 LEX K. LARSON, EMPLOYMENT DISCRIMINATION, § 56.10[1] (2d ed. 2008) (“The leading example of this principle, as it pertains to Title VII, is . . . Bhatia v. Chevron USA.”). 2. Bhatia, 734 F.2d at 1383. 3. Id. 1185 WOLKINSONFINALIZED_SEVEN_UPDATED 1186 U. OF PENNSYLVANIA JOURNAL OF BUSINESS LAW 9/9/2010 4:47 PM [Vol. 12:4 company to undue hardship, and consequently it dismissed his claim of religious discrimination.4 This comment represents a historical and legal critique of this widely accepted decision. The comment is divided into the following sections. First, it will provide an overview of the minority religious groups within our society who are negatively affected by a grooming policy prohibiting beards at the workplace. Second, it will briefly identify the nature of an employer’s duty to accommodate under Title VII and critically evaluate the test of undue hardship liquidating that obligation that the Supreme Court established in its seminal decision, Trans World Airlines, Inc. v. Hardison. 5 Third, based on a review of documents on record with the California Division of Occupational Safety and Health, 6 the agency that reviewed Bhatia’s situation, it will argue that Chevron would not have been in breach of any OSHA requirement had it accommodated Bhatia. Fourth, it will present an alternative legal model of business necessity, first promulgated by the Supreme Court in Griggs v. Duke Power Co., 7 that merits application in religious accommodation cases in order to afford equal employment opportunity to members of our society whose religious beliefs are less widely spread or known. Fifth, it will critically evaluate other nobeard cases to illustrate the current judicial predisposition to ignore the serious disparate impact that a failure to accommodate will have on many religious groups, thereby making diversity in the workplace a difficult goal to realize. Finally, against the background of Bhatia and other cases, it will propose legislative action to ensure that the religious beliefs of workers will not unfairly restrict their job opportunities. II. BACKGROUND A. Why a Conflict Exists The overwhelming majority of Americans identify themselves as adherents of Christianity, with 78.4 percent of adults belonging to some Christian group, primarily Catholic or Protestant.8 Yet our nation’s population also consists of adherents of other faiths followed more predominantly in other parts of the world, including those practicing 4. Id. at 1384. 5. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 6. The documents referred to are actual case records that California OSHA compiled regarding Bhatia’s request for accommodation. The author wishes to thank Michael Horowitz, Senior Industrial Hygienist at California OSHA, for providing these documents. 7. Griggs v. Duke Power Co., 401 U.S. 424 (1971). 8. THE PEW FORUM ON RELIGION & PUBLIC LIFE, U.S. RELIGIOUS LANDSCAPE SURVEY, 5 (Feb. 2008), available at http://religions.pewforum.org/reports. WOLKINSONFINALIZED_SEVEN_UPDATED 2010] REAPPRAISAL OF BHATIA V. CHEVRON 9/9/2010 4:47 PM 1187 Judaism (1.7%), Islam (0.6%), Buddhism (0.7%), and Sikhism (0.1%). 9 While these religious groups compose only a relatively small percentage of the population, their presence is increasing, as the number of individuals practicing Islam, Buddhism, and Sikhism has doubled between 1990 and 2001. 10 As the United States becomes more ethnically and religiously diverse, conflicts may arise between an employee’s adherence to his faith and compliance with an organization’s business policies and practices. One such source of conflict may be a firm’s grooming policies. A recent report by the Society for Human Resource Management noted that eighty-nine percent of organizations have some type of policy restricting an employee’s personal appearance.11 Of these, twenty-nine percent may have restrictions on facial hair including an outright ban on the wearing of beards.12 Employers typically provide a variety of reasons for their grooming policies, including safety, 13 concerns over customer preferences and public image, 14 and a desire to maintain uniformity of employee-appearance to promote discipline and morale.15 Policies banning the wearing of beards at the work site may have a severe impact on the employment of Muslim, Sikh, and Jewish workers and job applicants. Within Islam, some religious Muslims consider shaving one’s beard to be a violation of the Prophet’s command. Thus some Islamic scholars maintain that the wearing of a beard complies with Mohammad’s command to wear a beard as a sign of separation from 9. Id. at 12, 21; U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, 55 available at http://www.census.gov/prod/2004pubs/04statab/pop.pdf. 10. U.S. CENSUS BUREAU, supra note 9, at 55. 11. SHRM Research PowerPoint, Does your organization have a policy addressing employee personal appearance? - SHRM Poll, at 3 (2006), available at http://www.shrm.org/Research/SurveyFindings/Articles/Pages/gemployeepersonalappearanc e.aspx. 12. Id. 13. See, e.g., Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1382 (9th Cir. 1984) (finding that accommodating a worker’s religious beliefs that prevented him from shaving facial hair would have caused the employer undue hardship). 14. See, e.g., Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005) (holding that it would cause (...truncated)