Salik Bey, Terrel Joseph, Steven Seymour, and Clyde Phillips (the Firefighters) are Black men who were or still are firefighters with the New York City Fire Department. Each of them suffers from a skin condition called Pseudofolliculitis Barbae (PFB), which results in persistent irritation and pain following shaving. The effects of shaving with PFB can range from mild or moderate (such as skin irritation, bruising, and boils) to severe (such as facial scarring). While there are some treatments that help limit PFB’s effects, it is medically recommended that individuals with PFB avoid shaving down to the skin. PFB affects between 45% and 85% of Black men.
Under New York law, the FDNY must comply with regulations created by the United States Occupational Safety and Health Administration (OSHA). One OSHA regulation, 29 CFR §1910.134(g)(1)(i)(A), provides that if a respirator does not seal snuggly against the mask-wearer’s face, there is a risk that it will not be able to keep out harmful atmospheres. To ensure proper sealing, the regulations direct that “facial hair cannot come between the sealing surface of the respirator’s facepiece and the face.”
The FDNY has a written grooming policy that governs how full-duty firefighters may wear their facial hair. In its current form, the policy requires all full-duty firefighters to be clean shaven in the neck, chin, and cheek area, and permits only short sideburns and a closely trimmed mustache that does not extend beyond the mouth’s corners or below the lower lip. While the policy currently has no exceptions, it has not always been so strict.
In August 2015, the FDNY began to offer medical accommodations to firefighters with PFB. Those accommodations permitted the firefighters to maintain closely cropped beards (one millimeter to one quarter inch in length), uncut by a razor. To ensure that this accommodation did not interfere with respirator performance, the FDNY required firefighters seeking to take advantage of the exception to pass a fit test – a standardized test designed by OSHA to ensure that a respirator properly seals against the mask-wearer’s face.
Only when a firefighter with facial hair was able to pass such a test without any air leakage did the FDNY permit him to return to full duty. During the time this accommodation system was in place, 20 firefighters took advantage of the program without any adverse safety incidents.
In 2018, the FDNY determined that the accommodation was prohibited by OSHA’s regulation and revoked the program. As a result, all firefighters who had previously been granted an accommodation were told that either they had to become clean shaven or they would be placed on light duty.
The Firefighters sued, claiming the City’s changed policy violated the ADA and consisted of “disparate impact” discrimination in violation of Title VII of the Civil Rights Act. The federal Second Circuit Court of Appeals disagreed and dismissed the lawsuit.
The problem, the Court found, was that the Firefighters’ proposed accommodation – a reversion to the exceptions the FDNY made for short beards – was forbidden by the OSHA regulation. The Court held that “the respiratory-protection standard clearly requires firefighters to be clean shaven where a respirator seals against their face. Because we find the regulation to be unambiguous, we can end our analysis there.
“But even if that were not the case, and we had a need to consider OSHA’s guidance on the subject, that guidance only further supports our reading of the regulation. Specifically, in an April 2011 interpretive letter, OSHA stated that ‘when a respirator must be worn to protect employees from airborne contaminants, it has to fit correctly, and this will require the wearer’s face to be clean-shaven where the respirator seals against it.’ Consequently, even if we agreed with the Firefighters that the respiratory-protection standard is ambiguous (and we do not), OSHA’s guidance clearly indicates that firefighters must be clean shaven where a tight-fitting respirator meets the skin.”
The Court concluded that “an accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency. Whether that is because the illegality of the accommodation presents an undue hardship as the FDNY suggests, or because the existence of the federal regulation is itself an affirmative defense, makes little difference. In either case, an employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law.”
Using much the same logic, the Court also dismissed the Firefighters’ Title VII disparate impact claim.
Bey v. City of New York, 2021 WL 2345249 (2d Cir. 2021).