Cloutier v. Costco Wholesale Corp.

United States Court of Appeals
For the First Circuit

No. 04-1475

KIMBERLY M. CLOUTIER,

Plaintiff, Appellant,

v.

COSTCO WHOLESALE CORP.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

Michael O. Shea for appellant.
Lynn A. Kappelman, with whom Seyfarth Shaw and Krista Green
Pratt were on brief, for appellee.
Stephen A. Bokat, Ellen Dunham Bryant, National Chamber
Litigation Center, Ann Elizabeth Reesman, Laura Anne Giantris, and
McGuiness Norris & Williams, LLP, on brief for The Chamber of
Commerce of the United States and the Equal Employment Advisory
Council, amici curiae.

December 1, 2004
 LIPEZ, Circuit Judge. Kimberly Cloutier alleges that her

employer, Costco Wholesale Corp. (Costco), failed to offer her a

reasonable accommodation after she alerted it to a conflict between

the "no facial jewelry" provision of its dress code and her

religious practice as a member of the Church of Body Modification.

She argues that this failure amounts to religious discrimination in

violation of Title VII, 42 U.S.C. § 2000e-2(a), and the

corresponding Massachusetts statute, Mass. Gen. Laws ch. 151B, §

4(1A). The district court granted summary judgment for Costco,

concluding that Costco reasonably accommodated Cloutier by offering

to reinstate her if she either covered her facial piercing with a

band-aid or replaced it with a clear retainer. We affirm the grant

of summary judgment, but on a different basis. See Estades-Negroni

v. Assocs. Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004) ("We

may affirm . . . on any grounds supported by the record."). We

hold that Costco had no duty to accommodate Cloutier because it

could not do so without undue hardship.

I.

We set forth the relevant facts from the summary judgment

record, viewing them in the light most favorable to Cloutier. Diaz

v. City of Fitchburg, 176 F.3d 560, 561 (1st Cir. 1999) ("Because

this is an appeal from a grant of summary judgment to defendants,

we recite the facts in the light most favorable to plaintiffs.").

Kimberly Cloutier began working at Costco's West Springfield,

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Massachusetts store in July 1997. Before her first day of work,

Cloutier received a copy of the Costco employment agreement, which

included the employee dress code. When she was hired, Cloutier had

multiple earrings and four tattoos, but no facial piercings.

Cloutier moved from her position as a front-end

assistant1 to the deli department in September 1997. In 1998,

Costco revised its dress code to prohibit food handlers, including

deli employees, from wearing any jewelry. Cloutier's supervisor

instructed her to remove her earrings pursuant to the revised code,

but Cloutier refused. Instead, she requested to transfer to a

front-end position where she would be permitted to continue wearing

her jewelry. Cloutier did not indicate at the time that her

insistence on wearing her earrings was based on a religious or

spiritual belief.

Costco approved Cloutier's transfer back to a front-end

position in June 1998, and promoted her to cashier soon thereafter.

Over the ensuing two years, she engaged in various forms of body

modification including facial piercing and cutting. Although these

practices were meaningful to Cloutier, they were not motivated by

a religious belief.

In March 2001, Costco further revised its dress code to

prohibit all facial jewelry, aside from earrings, and disseminated

1
Cloutier's responsibilities as a front-end assistant included
packing customers' purchases, reshelving items, retrieving item
numbers, and occasionally filling in as a cashier.

-3-
the modified code to its employees. Cloutier did not challenge the

dress code or seek an accommodation, but rather continued

uneventfully to wear her eyebrow piercing for several months.

Costco began enforcing its no-facial-jewelry policy in

June 2001. On June 25, 2001, front-end supervisors Todd Cunningham

and Michele Callaghan informed Cloutier and another employee,

Jennifer Theriaque, that they would have to remove their facial

piercings. Cloutier and Theriaque did not comply, returning to

work the following day still wearing their piercings. When

Callaghan reiterated the no-facial-jewelry policy, Cloutier

indicated for the first time that she was a member of the Church of

Body Modification (CBM), and that her eyebrow piercing was part of

her religion.2

The CBM was established in 1999 and counts approximately

1000 members who participate in such practices as piercing,

tattooing, branding, cutting, and body manipulation. Among the

goals espoused in the CBM's mission statement are for its members

to "grow as individuals through body modification and its

teachings," to "promote growth in mind, body and spirit," and to be

2
There is some dispute as to when Cloutier joined the CBM.
The record includes an application dated June 27, 2001, two days
after Cloutier was first told to remove her facial piercing.
However, Cloutier claims that she first filled out an electronic
application in March 2001, but that she had to reapply in June
because the March application had not been processed due to a
computer error. For the purposes of our summary judgment analysis,
we accept Cloutier's account.

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"confident role models in learning, teaching, and displaying body

modification." The church's website, apparently its primary mode

for reaching its adherents, did not state that members' body

modifications had to be visible at all times or that temporarily

removing body modifications would violate a religious tenet.

Still, Cloutier interprets the call to be a confident role model as

requiring that her piercings be visible at all times and precluding

her from removing or covering her facial jewelry. She does not

extend this reasoning to the tattoos on her upper arms, which were

covered at work by her shirt.

After reviewing information that Cloutier provided from

the CBM website, Callaghan's supervisor, Andrew Mulik, instructed

Cloutier and Theriaque to remove their facial jewelry. They

refused. The following day, Cloutier filed a religious

discrimination complaint with the Equal Employment Opportunity

Commission (EEOC), which is empowered to enforce Title VII. 42

U.S.C. § 2000e-5.

When Cloutier returned to work for her next shift on June

29, 2001, she was still wearing her facial jewelry. She met with

Mark Shevchuk, the store manager, about her membership in the CBM

and the EEOC complaint. During the course of the meeting, Cloutier

suggested that she be allowed to cover her eyebrow piercing with a

flesh-colored band-aid. Shevchuk rejected the suggestion and told

Cloutier that she had to remove the piercing or go home. She left.

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 Theriaque also returned to work wearing her facial

jewelry on June 29, 2001 and was reminded of the dress code. She

asked whether she could wear clear plastic retainers in place of

her jewelry to prevent the piercings from closing. The parties

disagree as to whether Costco accepted this arrangement immediately

or after several weeks of consideration. For purposes of our

summary judgment analysis, we accept Cloutier's contention that

Theriaque wore the retainers to work for several weeks unnoticed

before Costco gave her permission to do so.

Although Cloutier learned during the week of July 2, 2001

that Theriaque had returned to work with retainers, she chose to

wait for her EEOC complaint to be resolved rather than following

suit. During the week of July 7, 2001, Cloutier inquired of her

superiors whether she could use vacation time to cover her absences

and was told that she had been suspended. The following week, on

July 14, Cloutier received notice in the mail that she had been

terminated for her unexcused absences resulting from noncompliance

with the dress code. She claims that this was her first notice

that Costco had decided not to grant her request for an

accommodation that would reconcile the dress code with her

religious requirement of displaying her facial jewelry at all

times.

The parties remained in contact after Cloutier's

termination through the EEOC mediation process. During a meeting

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on August 10, 2001, Costco offered to let Cloutier return to work

wearing either plastic retainers or a band-aid over her jewelry

(the same accommodation that Cloutier had suggested prior to her

termination). Shevchuk repeated the offer in a letter dated August

29, 2001, asking Cloutier to respond by September 6, 2001.

Although there is some dispute as to whether Cloutier

attempted to respond to Costco's offer before the deadline,3 she

now maintains that neither of the proffered accommodations would be

adequate because the CBM's tenets, as she interprets them, require

her to display all of her facial piercings at all times. Replacing

her eyebrow piercing with a plastic retainer or covering it with a

band-aid would thus contradict her religious convictions. Cloutier

asserts that the only reasonable accommodation would be to excuse

her from Costco's dress code, allowing her to wear her facial

jewelry to work. Costco responds that this accommodation would

interfere with its ability to maintain a professional appearance

and would thereby create an undue hardship for its business.

The EEOC determined in May 2002 that Costco's actions

violated Title VII of the Civil Rights Act of 1964. It found that

Cloutier's refusal to remove her facial jewelry was "religiously

based as defined by the EEOC," that Costco did not allow her to

wear her facial jewelry at work, and that there was no evidence

3
Costco maintains that Cloutier never responded; Cloutier
contends that she called Shevchuk on September 6 to discuss the
offer, but that he was unavailable and did not return her call.

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that allowing her to wear the jewelry would have constituted an

undue hardship. Based on this determination, Cloutier filed a suit

against Costco in federal district court in August 2002 alleging a

Title VII violation. 42 U.S.C. § 2000e-2(a). She amended the

complaint four months later, adding state law claims for religious

discrimination, Mass. Gen. Laws ch. 151B §4(1)(A), and violation of

her civil rights, Mass. Gen. Laws ch. 12 § 11I.

The district court granted Costco's motion to dismiss

Cloutier's state civil rights claim but allowed the federal and

state discrimination claims to proceed. Costco then moved for

summary judgment on the discrimination claims.

In ruling on that motion, the court applied the two-part

framework set forth in EEOC v. Unión Independiente de la Autoridad

de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55

(1st Cir. 2002). First, the court evaluated Cloutier's prima facie

case, which required her to show that (1) a bona fide religious

practice conflicted with an employment requirement, (2) she brought

the practice to Costco's attention, and (3) the religious practice

was the basis for the termination. Id. The court expressed

serious doubts as to whether Cloutier's claim was based on a "bona

fide religious practice" for purposes of the first element, noting

that even assuming arguendo that the CBM is a bona fide religion,

it "in no way requires a display of facial piercings at all times.

The requirement that she display her piercings, open and always,

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represents the plaintiff's personal interpretation of the

stringency of her beliefs." The court also questioned the

sincerity of Cloutier's personal interpretation, given that she

initially offered to cover her piercing with a band-aid, an

alternative that she now claims would violate her religion.

The court ultimately avoided ruling on whether the CBM is

a religion or whether Cloutier's interpretation of the CBM tenets

is protected by Title VII. Instead, the court concluded that even

if Cloutier had met her prima facie case, Costco should prevail

because it fulfilled its obligations under the second part of the

Title VII framework. Specifically, the court found that Costco met

its burden of showing that it had offered Cloutier a reasonable

accommodation of her religious practice:

Costco's offer of accommodation was manifestly reasonable
as a matter of law. The temporary covering of
plaintiff's facial piercings during working hours
impinges on plaintiff's religious scruples no more than
the wearing of a blouse, which covers plaintiff's
tattoos. The alternative of a clear plastic retainer
does not even require plaintiff to cover her piercings.
Neither of these alternative accommodations will compel
plaintiff to violate any of the established tenets of the
CBM.

Cloutier v. Costco Wholesale Corp., 311 F. Supp. 2d 190, 199 (D.

Mass. 2004).

In granting summary judgment on the Title VII claim, the

court stressed that "the search for a reasonable accommodation goes

both ways. Although the employer is required under Title VII to

accommodate an employee's religious beliefs, the employee has a

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duty to cooperate with the employer's good faith efforts to

accommodate." Id. at 198. The court also noted that Title VII

does not require Costco to grant Cloutier's preferred

accommodation, but merely a reasonable one. While Costco's

suggested accommodation balanced Cloutier's beliefs with its

interest in presenting a professional appearance, Cloutier "offered

no accommodation whatsoever."4 Id. at 200.

Having resolved the federal claim, the court turned to

Cloutier's state law claim under Mass. Gen. Laws ch. 151B § 4(1A),

which has been interpreted largely to mirror Title VII. Wheatley

v. AT&T, 418 Mass. 394, 397, 636 N.E.2d 265, 268 (1994). The

statute prevents employers from imposing a condition of employment

which "would require [an employee] to violate, or forego the

practice of, his creed or religion as required by that creed or

religion." Mass Gen. Laws ch. 151B § 4(1A). "Creed or religion"

is defined as "any sincerely held religious beliefs, without regard

to whether such beliefs are approved, espoused, prescribed or

required by an established church or other religious institution or

organization." Id. The employee bears the burden of proof in

establishing that something is a practice of his creed or religion.

Under this examination, "[i]nquiry as to whether an employee's

belief is sincere is constitutionally appropriate." Opinion of the

4
This observation reflects Cloutier's final position that the
only acceptable accommodation would be to exempt her from the no-
facial-jewelry policy.

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Justices, 423 Mass. 1244, 1246, 673 N.E.2d 36, 37 (1996). Where

the employee demonstrates that a conflict exists, the burden shifts

to the employer, who must prove that it offered the employee a

"reasonable accommodation," defined as one that "shall not cause

undue hardship in the conduct of the employer's business." Mass.

Gen. Laws ch. 151B § 4(1A).

Under the foregoing framework, the district court

concluded that summary judgment for Costco was appropriate.

Although it noted the possibility that the state statute "casts a

broader net than Title VII in covering purely personal beliefs that

may be entitled to protection from discrimination," the court

relied on its previous finding that Costco's offer to let Cloutier

return to work wearing a band-aid or plastic retainer was

"reasonable as a matter of law." Cloutier, 311 F. Supp. 2d at 202.

Cloutier now appeals, arguing that the court erred in

finding no violation of Title VII or Mass. Gen. L. ch. 151B § 4(1A)

and that disputed material facts made summary judgment

inappropriate.5 Summary judgment is appropriate when, viewing the

record in the light most favorable to the nonmoving party, the

court finds that there are no genuine issues of material fact in

dispute and that the moving party is entitled to judgment as a

5
Cloutier also argues that the district court improperly
rejected her retaliation claim on the grounds that it was not pled
separately. Because we agree that the claim was not properly
raised in the Second Amended Complaint, we will not reach its
merits.

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matter of law. Dasey v. Anderson, 304 F.3d 148, 153 (1st Cir.

2002). Our review is de novo. Whitlock v. Mac-Gray, Inc., 345

F.3d 44, 45 (1st Cir. 2003) ("We review a summary judgment de novo,

construing the record in the light most favorable to the nonmoving

party and resolving all reasonable inferences in that party's

favor.").

II.

On appeal, Cloutier vigorously asserts that her

insistence on displaying all her facial jewelry at all times is the

result of a sincerely held religious belief. Determining whether

a belief is religious is "more often than not a difficult and

delicate task," one to which the courts are ill-suited. Thomas v.

Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714

(1981). Fortunately, as the district court noted, there is no need

for us to delve into this thorny question in the present case.

Even assuming, arguendo, that Cloutier established her prima facie

case, the facts here do not support a finding of impermissible

religious discrimination.

Although the district court's decision rested on the

conclusion that Costco had offered Cloutier a reasonable

accommodation, "[w]e may affirm . . . on any grounds supported by

the record." Estades-Negroni v. Assocs. Corp. of North Am., 377

F.3d 58, 62 (1st Cir. 2004). We find dispositive that the only

accommodation Cloutier considers reasonable, a blanket exemption

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from the no-facial-jewelry policy, would impose an undue hardship

on Costco.6 In such a situation, an employer has no obligation to

offer an accommodation before taking an adverse employment action.

EEOC v. Ilona of Hungary, Inc., 97 F.3d 204, 211 (7th Cir. 1996);

Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th Cir. 1989).

A. Title VII

Title VII of the Civil Rights Act of 1964 prohibits

employers from discriminating against employees on the basis of,

among other things, religion. 42 U.S.C. § 2000e-2(a). Under Title

VII, an employer must offer a reasonable accommodation to resolve

a conflict between an employee's sincerely held religious belief

and a condition of employment, unless such an accommodation would

create an undue hardship for the employer's business. 42 U.S.C. §

2000e(j).

6
We note that Cloutier's requested accommodation has evolved
over time. When she first informed Costco management that her
religious practice conflicted with its no-facial-jewelry
requirement, Cloutier proposed that she be allowed to cover her
piercing with a band-aid while working. In the course of this
litigation, she has asserted that, even at the time, she believed
that wearing the band-aid would violate the tenets of the CBM but
nonetheless proposed it to "try and come to an agreement with
them." She now maintains that covering her piercings with a band-
aid or temporarily replacing them with a plastic retainer would
violate her religious beliefs and thus that any such accommodation
would not be reasonable. We accept the finality of Cloutier's
position in evaluating whether Costco could have reasonably
accommodated her religious practice without suffering an undue
hardship.

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 As noted, the First Circuit applies a two-part framework

to religious discrimination claims under Title VII. First, the

plaintiff must make her prima facie case that a bona fide religious

practice conflicts with an employment requirement and was the

reason for the adverse employment action. Unión Independiente, 279

F.3d at 55. If the plaintiff establishes her prima facie case, the

burden then shifts to the employer to show that it offered a

reasonable accommodation or, if it did not offer an accommodation,

that doing so would have resulted in undue hardship. Id.

We follow the district court in assuming, arguendo, that

Cloutier established a prima facie case sufficient to shift the

burden to Costco to demonstrate that it offered a reasonable

accommodation or that it could not do so without suffering undue

hardship.

1. Reasonable accommodation

The parties dispute when Costco first offered Cloutier an

accommodation, but we view the facts on summary judgment in the

light most favorable to Cloutier. Cloutier was terminated on July

14, 2001. She maintains that Costco did not extend any offer of

accommodation until August 10, 2001, approximately one month later,

during a meeting that was part of the EEOC mediation process.7 The

7
Costco contends that it offered an accommodation to Cloutier
before she was terminated, when she learned by July 2, 2001 that
Theriaque, her co-worker and fellow member of the CBM, had returned
to work wearing fishing wire or a plastic retainer. Cloutier

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district court acknowledged this time line but asserted that

"[t]his delay [in making the offer after Cloutier had been

terminated] does not justify denial of the motion for summary

judgment." The court offered three explanations for this

statement: (1) Costco may have offered Cloutier back pay, (2) "the

delay in transmitting the offer emerged as much from a failure of

cooperation by plaintiff as from any intransigence on the part of

the defendant," and (3) the assumption that Cloutier would not

bring the case to trial over four weeks' salary. Unpersuaded that

the first and third points are relevant to our reasonable

accommodation inquiry,8 we question the district court's dismissal

of this timing difficulty.

Courts in at least two of our sister circuits have ruled

that an accommodation offered after an adverse employment action

does not shield an employer from liability under Title VII. See

claims that she was unaware at the time that Theriaque had Costco's
permission for this arrangement. We accept Cloutier's version for
the purpose of this summary judgment analysis.
8
Title VII's reasonable accommodation framework is an effort
to reconcile conflicts between religious practices and business
concerns. See, e.g., Unión Independiente, 279 F.3d at 55 ("[I]n
general terms, Title VII requires employers . . . to accommodate,
within reasonable limits, the bona fide religious beliefs and
practices of employees.") The availability and amount of back pay
at issue are not pertinent to whether Costco's August 2001 offer
reasonably reconciled the conflict between Cloutier's religious
practice and Costco's interest in presenting a professional
workforce. Indeed, these factors seem more appropriate to
assessing the reasonableness of a settlement offer than of an
accommodation offer.

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Heller v. EBB Auto Co., 8 F.3d 1433, 1440 (9th Cir. 1993)

(accommodation offer following termination was "relevant only to

the issue of mitigation of damages"); Toledo, 892 F.2d at 1487-88

(settlement offer extended after refusal to hire does not qualify

as a reasonable accommodation). Courts have also acknowledged that

the opposite rule, treating as reasonable a post-termination offer

extended during the EEOC mediation process, would "encourage the

making of such offers, thus furthering [Title VII's] important

statutory policy favoring voluntary reconciliation." Toledo, 892

F.2d at 1487. Yet, as the Tenth Circuit has noted, this rule would

also leave employers' conduct "virtually unregulated" when

conflicts first arise. Id. at 1488. As a consequence, "Title VII

would provide employees no protection until after the fact, an

important consideration given the impact a suspension, termination,

or rejection may have on an individual's life." Id.

Even this limited discussion illustrates that the

question of whether a post-termination offer extended during the

EEOC mediation process can be a reasonable accommodation raises

difficult issues. We have yet to consider this question directly

and decline to do so here on the limited summary judgment record.

Our affirmance rests instead on an alternative ground advanced by

Costco -- namely, that the only accommodation Cloutier considers

reasonable would impose an undue hardship on Costco.

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 2. Undue hardship

Cloutier asserts that the CBM mandate to be a confident

role model requires her to display all of her facial piercings at

all times. In her view, the only reasonable accommodation would be

exemption from the no-facial-jewelry policy. Costco maintains that

such an exemption would cause it to suffer an undue hardship, and

that as a result it had no obligation to accommodate Cloutier. See

Toledo, 892 F.2d at 1490 ("[A]n employer who has made no efforts to

accommodate the religious beliefs of an employee or applicant

before taking action against him may only prevail if it shows that

no accommodation could have been made without undue hardship.").

An accommodation constitutes an "undue hardship" if it

would impose more than a de minimis cost on the employer. Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). This

calculus applies both to economic costs, such as lost business or

having to hire additional employees to accommodate a Sabbath

observer, and to non-economic costs, such as compromising the

integrity of a seniority system. United States v. Bd. of Educ.,

911 F.2d 882, 887 (3d Cir. 1990) (citing Hardison, 432 U.S. at 79-

83); see also EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 615

(9th Cir. 1988) ("Cost cannot always be measured in terms of

dollars.") (internal quotation marks omitted).

Cloutier argues that Costco has not met its burden of

demonstrating that her requested accommodation would impose an

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undue hardship. See Unión Independiente, 279 F.3d at 55

(describing the allocation of burdens in a Title VII inquiry). She

asserts that she did not receive complaints about her facial

piercings and that the piercings did not affect her job

performance. Hence, she contends that any hardship Costco posits

is merely hypothetical and therefore not sufficient to excuse it

from accommodating her religious practice under Title VII.

Courts are "somewhat skeptical of hypothetical hardships

that an employer thinks might be caused by an accommodation that

never has been put into practice." Draper v. U.S. Pipe & Foundry

Co., 527 F.2d 515, 520 (6th Cir. 1975). "Nevertheless, it is

possible for an employer to prove undue hardship without actually

having undertaken any of the possible accommodations . . . ." Id.

It can do so by "examining the specific hardships imposed by

specific accommodation proposals." Toledo, 892 F.2d at 1490.

Here, Costco has only one proposal to evaluate (allowing Cloutier

to wear and display her body jewelry as she demands) and has

determined that it would constitute an undue hardship.

The district court acknowledged that "Costco has a

legitimate interest in presenting a workforce to its customers that

is, at least in Costco's eyes, reasonably professional in

appearance." Costco's dress code, included in the handbook

distributed to all employees, furthers this interest. The preface

to the code explains that, "Appearance and perception play a key

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role in member service. Our goal is to be dressed in professional

attire that is appropriate to our business at all times. . . . All

Costco employees must practice good grooming and personal hygiene

to convey a neat, clean and professional image."

It is axiomatic that, for better or for worse, employees

reflect on their employers. This is particularly true of employees

who regularly interact with customers, as Cloutier did in her

cashier position. Even if Cloutier did not personally receive any

complaints about her appearance, her facial jewelry influenced

Costco's public image and, in Costco's calculation, detracted from

its professionalism.

Costco is far from unique in adopting personal appearance

standards to promote and protect its image. As the D.C. Circuit

noted, "Perhaps no facet of business life is more important than a

company's place in public estimation. . . . Good grooming

regulations reflect a company's policy in our highly competitive

business environment. Reasonable requirements in furtherance of

that policy are an aspect of managerial responsibility." Fagan v.

Nat'l Cash Register Co. 481 F.2d 1115, 1124-25 (D.C. Cir. 1973).

Courts have long recognized the importance of personal

appearance regulations, even in the face of Title VII challenges.

See Woods v. Safeway Stores, Inc., 420 F. Supp. 35, 43 (E.D. Va.

1976), aff'd, 579 F.2d 43 (4th Cir. 1978) (citing "a plethora" of

cases in upholding an employer's right to "maintain grooming

-19-
standards" in Title VII cases). Such regulations are often

justified with regard to safety concerns. E.g., Bhatia v. Chevron

U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984) (affirming summary

judgment for employer who refused to exempt a Sikh employee from

the requirement that all machinists be clean-shaven, where the

policy was based on the necessity of being able to wear a

respirator with a gas-tight face seal because of potential exposure

to toxic gases).

Courts considering Title VII religious discrimination

claims have also upheld dress code policies that, like Costco's,

are designed to appeal to customer preference or to promote a

professional public image. E.g., Hussein v. The Waldorf-Astoria,

134 F. Supp. 2d 591, 599 (S.D.N.Y. 2001) ("Some courts have found

that clean-shavenness is a bona fide occupational qualification in

certain businesses and, in those situations, as long as the

employer's grooming requirement is not directed at religion,

enforcing the policy is not an unlawful discriminatory practice."),

aff'd, 31 Fed. Appx. 740 (2d Cir. 2002) (unpublished). The

majority of religious discrimination cases in this arena appear to

involve policies regulating facial hair. E.g., Hussein, 134 F.

Supp. 2d 591; EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86

(N.D. Geo. 1981) (holding that exempting a Sikh job applicant whose

religious practice required that he wear a beard from a

restaurant's no-facial-hair policy would constitute undue

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hardship); cf. Woods, 420 F. Supp. at 43 (upholding employer's no-

beard policy against a claim of racial discrimination, finding that

it served a legitimate business interest in maintaining an image of

cleanliness to attract and retain customers).

But we are not the first court to consider a religious

discrimination claim involving jewelry. In Daniels v. City of

Arlington, 246 F.3d 500 (5th Cir. 2001), a former police officer

claimed that his dismissal for wearing a gold cross pin on his

uniform in violation of the police department's no-pin policy

violated Title VII. The only reasonable accommodation that Daniels

cited was to exempt him from the no-pin policy. The Fifth Circuit

granted summary judgment for the police department, concluding that

"[t]he only accommodation Daniels proposes is unreasonable and an

undue hardship for the city as a matter of law." Id. at 506. See

also Wilson v. U.S. West Communications, 58 F.3d 1337, 1342 n.3

(8th Cir. 1995) (accommodating employee's religious vow to wear a

graphic anti-abortion button, where employee insisted that no

alternative was reasonable, was an undue hardship).

The assessment of what constitutes an undue hardship may

be somewhat different for a private employer than for a police

department. See Daniels, 246 F.3d at 503-04. Still, we are faced

with the similar situation of an employee who will accept no

accommodation short of an outright exemption from a neutral dress

code. Granting such an exemption would be an undue hardship

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because it would adversely affect the employer's public image.

Costco has made a determination that facial piercings, aside from

earrings, detract from the "neat, clean and professional image"

that it aims to cultivate. Such a business determination is within

its discretion. As another court has explained, "Even assuming

that the defendants' justification for the grooming standards

amounted to nothing more than an appeal to customer preference, .

. . it is not the law that customer preference is an insufficient

justification as a matter of law." Sambo's of Georgia, Inc., 530 F.

Supp. at 91.

Cloutier argues that regardless of the reasons for the

dress code, permitting her to display her facial jewelry would not

be an undue hardship because Costco already overlooks other

violations of its policy. In support of her position, she cites

affidavits from two Costco employees identifying co-workers who

"were allowed to wear facial piercing[s] . . . and were not

disciplined." Costco responds that any employees who displayed

facial jewelry did so without its permission or knowledge, noting

that constant monitoring is impossible in a facility with several

hundred employees.

We find Cloutier's contention, and the affidavits

underlying it, unpersuasive. To the extent that the ambiguous term

"allowed" implies that Costco was aware of the piercings, the

affidavits are marred by an evidentiary flaw: the affiants do not

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appear to have personal knowledge of Costco's awareness. See

Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)

(affidavits can block summary judgment "only insofar as they are

'made on personal knowledge . . . [and] set forth such facts as

would be admissible in evidence'" (quoting Fed. R. Civ. P. 56(e))).

And to the extent that the affidavits suggest that other employees'

piercings went unnoticed, we do not believe that such isolated

violations diminish the hardship Costco would suffer if it were

forced to exempt Cloutier from its no-facial-jewelry policy.

Cloutier appears to reason that because other employees

have violated the no-facial-jewelry policy, it would not be an

additional burden on Costco's effort to present a professional

workforce for her to display her piercings as well. But there is

an important distinction between an employee who displays facial

jewelry unnoticed in violation of the dress code and one who does

so under an exemption from the dress code. In the first scenario,

Costco can instruct an employee to remove facial jewelry as soon as

it becomes aware of a violation. In the second scenario, Costco

forfeits its ability to mandate compliance and thus loses control

over its public image. That loss, as we have discussed, would

constitute an undue hardship.

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 B. Chapter 151B

Massachusetts law prohibits an employer from enforcing a

condition of employment that would require an employee to violate

or forego the practice of her creed or religion. Mass. Gen. Laws

ch. 151B §4(1A). Where such a conflict arises, the law imposes

upon employers the duty to offer a reasonable accommodation,

defined as one that "shall not cause undue hardship in the conduct

of the employer's business." Id.

As the district court explained, the statute sets forth

a three-part inquiry. N.Y. & Mass. Motor Serv., Inc. v. Mass.

Comm'n Against Discrimination, 401 Mass. 566, 575-76, 517 N.E.2d

1270, 1276 (1988); Mass. Gen. Laws ch. 151B § 4(1A). First, the

employee bears the burden of proving that the employer required her

to violate a religious practice required by her sincerely held

belief. N.Y. & Mass. Motor Serv., Inc., 401 Mass. at 576, 517

N.E.2d at 1276. Second, an employee who needs time off for a

religious observance must provide her employer with at least ten

days' notice. Mass. Gen. L. ch. 151B § 4(1A).9 Finally, the

burden shifts to the employer to show that it offered a reasonable

accommodation, or that it could not have offered an accommodation

without causing undue hardship to its business. N.Y. & Mass. Motor

Serv., Inc., 401 Mass. at 576, 517 N.E.2d at 1276.

9
This requirement, of course, is not relevant to the case at
hand.

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 As in the Title VII inquiry, we find the undue hardship

factor determinative. Under the statute, undue hardship

shall include the inability of an employer to provide
services which are required by and in compliance with all
federal and state laws, . . . or where the health or
safety of the public would be unduly compromised by the
absence of such employee or employees, or where the
employee's presence is indispensable to the orderly
transaction of business and his or her work cannot be
performed by another employee of substantially similar
qualifications during the period of absence, or where the
employee's presence is needed to alleviate an emergency
situation.
Mass. Gen. Laws ch. 151B § 4(1A).

Chapter 151B's definition of "undue hardship" does not

explicitly address an accommodation request like Cloutier's, namely

one that would alter an employee's appearance rather than her

schedule. Yet the statute's protection of religious practices

"including but not limited to the observance of any particular . .

. sabbath or holy day" indicates that its scope includes a bona

fide claim of this type. Mass. Gen. Laws ch. 151B § 4(1A)

(emphasis added). From this, we understand Chapter 151B's

definition of undue hardship to be a non-exclusive list.

Such a reading is consistent with the phrasing of the

undue hardship definition: the statute states that undue hardship

"shall include" the factors specified. Id. This suggests an

illustrative list, rather than an exhaustive one. Massachusetts

Supreme Judicial Court precedent supports this interpretation of

Chapter 151B as well. In New York & Massachusetts Motor Service,

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the court discussed the appropriate standard for the Massachusetts

Commission Against Discrimination to use in analyzing undue

hardship. 401 Mass. at 575-79, 517 N.E.2d at 1275-78. In addition

to the conditions specified in Chapter 151B, the court explained

that an adjudicator "also must focus on whether the employer could

have exercised its managerial discretion in such a way that the

employee's religious obligations could have been reasonably

accommodated." 401 Mass. at 576, 517 N.E.2d at 1276.

This instruction provides some guidance, but

Massachusetts courts do not appear to have specifically considered

whether exempting an employee from a dress code constitutes undue

hardship. Where there are gaps in the application of Chapter 151B,

courts turn to case law interpreting Title VII. Wheatley, 418

Mass. at 397, 636 N.E.2d at 268 ("It is our practice to apply

Federal case law construing the Federal anti-discrimination

statutes in interpreting G.L. c. 151B.").

We thus consider the question of undue hardship in light

of both the Massachusetts Supreme Judicial Court's instruction in

New York & Massachusetts Motor Service and the foregoing discussion

of undue hardship under Title VII. Cloutier's insistence on a

wholesale exemption from the no-facial-jewelry policy precludes

Costco from using its managerial discretion to search for a

reasonable accommodation. Exempting Cloutier from the dress code

would have imposed more than a de minimis burden on Costco for the

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reasons outlined above. Her refusal to consider anything less

means that Costco could not offer a reasonable accommodation

without incurring an undue hardship. For this reason, Cloutier's

discrimination claim under Chapter 151B must fail.

Affirmed.

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