affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. Section 2000e(b), (g) and (h).
5. Since at least July 2, 1965, Greyhound Lines, Inc. has continuously and does now employ twenty-five (25) or more employees for each working day in each of twenty or more calendar weeks within the meaning of Section 701(b), of Title VII, Title 42, U.S.C. § 2000e(b).
6. More than thirty (30) days prior to the institution of this lawsuit, Jeffrey B. Ferguson filed a charge with the Equal Employment Opportunity Commission alleging a violation of Title VII by Defendant Greyhound.
7. Jeffrey B. Ferguson is a 27 year old black male. He was discharged from Greyhound because of his inability to comply with the company's "no beard" policy. Greyhound's grooming policy requires that all male employees who have contact with the public must be clean shaven.
8. Greyhound's supervisors are not permitted to deviate from strict enforcement of the grooming standard. No exceptions are made to the "no beard" rule.
9. Mr. Ferguson was discharged by the terminal manager pursuant to the personal appearance directive, No. PR-14, paragraph three which states: "Beards, goatees, muttonchops or other facial hair growths of an extreme or bizarre type are neither acceptable or permissible and are calculated to impair the neat and tidy personal appearance which is critically requisite and accordingly may not be worn."
10. Mr. Ferguson has a skin condition known as pseudofolliculitis barbae (PFB). This condition is caused by sharp tips of recently shaved facial hairs penetrating the skin and causing an inflammatory reaction. The disease occurs in persons with curly or kinky hair follicles. After shaving, the curved hair follicles cause the already curly hair to curve back into contact with the skin surface, pierce and reenter the skin, causing a pseudofollicle.
11. The inflammatory reaction may result in papules, pustules or abscesses. An individual with PFB may induce remission by growing a beard. Remission in such cases is nearly total and complete. An individual can, however, redevelop the disease by resuming shaving.
12. Mr. Ferguson was advised by his doctors to grow a beard as a curative and preventative measure. Other treatments, such as depilatories were unsuccessful, and in fact, aggravated the condition.
13. Greyhound's supervisors knew of Mr. Ferguson's condition. They received the results of examinations and were aware that growing a beard was medically indicated.
14. The supervisors nevertheless did not permit Mr. Ferguson to hold a public contact job.
15. Mr. Ferguson has a severe case of PFB. Growing a beard was the only effective remedy.
16. In December of 1976 Mr. Ferguson desired a position as a ticket agent, a public contact position. Because he was unable to comply with the "no beard" policy, he was denied the position and was furloughed on September 11, 1976.
17. Between November 1976 and January 1979 Mr. Ferguson was employed periodically by Defendant in non-public contact positions. He was qualified for the position of ticket agent, except for his inability to conform to the grooming regulations.
18. The evidence introduced at trial demonstrated that PFB is a disorder which predominately affects blacks.
19. The plaintiff's expert witness, Dr. A. Melvin Alexander, indicated that PFB, is a skin disorder that overwhelmingly affects black men who shave. Dr. Alexander cited studies and numerous articles to support his assertion that PFB is an immutable characteristic peculiar to members of the black race.
20. Defendant's justification for the policy was based on its business judgment that consumers prefer clean shaven employees. It was based solely on opinion testimony of defendant's employees.
21. Although Greyhound described its competition with rivals as fierce, the evidence demonstrated that Greyhound has exclusive direct service to the following locations: Johnstown, Pa., State College, Pa., Harrisburg, Pa., Mt. Pocono, Pa., York, Pa., Lancaster, Pa., Pittsburgh, Pa., Elkton, Maryland, East Brunswick, N.J., Newark, N.J., and Jersey City, N.J.
22. Greyhound is the largest bus company in the world. It competes with Trailways in much of the eastern United States.
23. The correct comparison for purposes of computing back pay is between Mr. Ferguson and Daniel Brown. Mr. Brown was in the first pay step of the ticket agent position in September, 1976, the month in which Mr. Ferguson was denied the ticket agent position. This Court finds that Mr. Ferguson would very likely have had an employment record similar to Mr. Brown's.
1. The EEOC has established by a preponderance of the evidence that Mr. Ferguson suffered from a serious case of PFB and that there was no satisfactory treatment for the disease other than growing a beard.
2. The disease of PFB is a skin disorder that primarily affects black males. Evidence at the trial demonstrated that the disease affects between 45 and 83% of all black males who shave.
3. There is no contention that Greyhound adopted its "no beard" policy with the purpose or intent to discriminate against black employees. Plaintiff contends, however, that because the disease primarily affects black workers, that it nevertheless violates § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2:
(a) It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
4. In a Title VII case the plaintiff bears the initial burden of making out a prima facie case. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct. 1843, 1854, 52 L. Ed. 2d 396 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975); McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). The Court concludes that the plaintiff has established a prima facie case of discrimination. It is well established that Title VII prohibits even racially neutral employment policies if such policies have a disparate impact on a particular racial group. General Electric v. Gilbert, 429 U.S. 125, 137, 97 S. Ct. 401, 408, 50 L. Ed. 2d 343 (1976); McDonnell Douglas v. Green, supra 411 U.S. at 802, 93 S. Ct. at 1824. The "no beard" policy, while racially neutral on the surface, in fact has a discriminatory impact on black employees. Black males who are otherwise qualified, are barred from higher paying positions solely because of a condition peculiar to their race.
5. Once discriminatory impact has been shown, the employer must demonstrate that the work requirement has "a manifest relationship to the employment in question." Griggs v. Duke Power, 401 U.S. 424, 432, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158 (1971). The requirement "must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge." Dothard v. Rawlinson, 433 U.S. 321, 332 n. 14, 97 S. Ct. 2720, 2728, 53 L. Ed. 2d 786 (1977). The burden on Greyhound is to prove the business necessity of its actions by a preponderance of the evidence. Dickerson v. U.S. Steel Corp., 472 F. Supp. 1304 (E.D.Pa.1978); 582 F.2d 827, 17 FEP Cases 1589. Croker v. Boeing Co., 437 F. Supp. 1138 (E.D.Pa.1977).
6. This Court believes that correct standard for defining the business necessity defense is contained in Robinson v. Lorillard, 444 F.2d 791, 798 (4th Cir. 1971); cert. denied, 404 U.S. 1006, 92 S. Ct. 573, 30 L. Ed. 2d 655 (1971); and cert. denied, 404 U.S. 1007, 92 S. Ct. 651, 30 L. Ed. 2d 655 (1971), where the court indicated that
"The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact. (Footnotes omitted)."