Four FDNY Firefighters Challenge Shaving Requirement As Discriminatory

Four African American firefighters have filed suit against the City of New York challenging FDNY’s requirement that they be “clean shaven”. The firefighters, who each have a medical condition called pseudofolliculitis barbae, allege that FDNY initially provided them with a reasonable accommodation, but without notice changed the policy as part of a deliberate effort to “thin the ranks of African American firefighters.”

The suit was filed last week in US District Court for the Eastern District of New York by Salik Bey, Terrel Joseph, Steven Seymour and Clyde Phillip. The essence of their allegations are summed up in the introduction to their complaint:

  • This case is about the FDNY’s discriminatory practices that ultimately seek to thin the ranks of African American firefighters.
  • The Plaintiffs are all African American firefighters who cannot shave with a razor because they suffer from Pseudofolliculitis Barbae, a medical condition that affects approximately 45-85% of black men.
  • Pseudofolliculitis Barbae is a medical condition that causes significant pain, severe bumps, scarring, and deformities on the skin of afflicted individuals if they shave with a razor in order to be completely clean shaven.
  • The Defendants installed a shaving policy that required each firefighter to be completely clean shaven.
  • As black men with Pseudofolliculitis Barbae, Plaintiffs cannot shave with a razor.
  • Moreover, this policy disproportionality affects black firefighters.
  • Plaintiffs were all afforded a medical accommodation to the shave policy due to their medical condition, and were permitted to maintain very slight and barely noticeable facial hair.
  • Plaintiffs trimmed their facial hair to the point where it was at best stubble.
  • With the accommodation, Plaintiffs were able to perform all of their job functions without any hardship to the Defendants.
  • Each Plaintiff passed a fit test that certified each Plaintiff could wear an oxygen mask with the slight facial hair without any leakage of air.
  • Despite the fact that Plaintiffs performed their job function with the accommodation without any hardship to Defendants, Defendants without any notice, legitimate reason, or rational basis, unilaterally canceled the accommodation.
  • Defendants did not engage in any analysis, consideration, or review of the accommodation. Plaintiffs were told that, all of a sudden, there were no exceptions to the shave policy and that the Plaintiffs were in direct violation of the policy.
  • Defendants then immediately reassigned the Plaintiffs from full duty to light duty as a result of their accommodation.
  • In doing so, Defendants were punishing the Plaintiffs as they could not earn overtime pay on light duty.
  • Defendants had the option of reassigning Plaintiffs to other positions that maintained their eligibility for overtime pay, but instead decided to assign them to light duty and deprive them of an equal opportunity to earn overtime.
  • Defendants’ actions were aimed at discriminating against African American firefighters as their policy affected predominantly African American firefighters within the FDNY.
  • The Defendants’ conduct has a disparate impact upon African American firefighters as nearly every African American firefighter was targeted by this sudden and unlawful change in policy.
  • The result of Defendants’ actions is that a disproportionate number of black firefighters were adversely affected by the policy, reassigned, and forced to choose between their livelihood and serving the City they love.
  • Moreover, the Defendants’ decision to place these firefighters on light duty enables the Defendants to eventually terminate the African American firefighters, further thinning an already sparse representation of minorities at the FDNY.
  • Plaintiffs and other African American firefighters now have to shave with a razor and endure painful bumps on their skin, irritated skin conditions, and scarring on their skin as a result of the FDNY’s unlawful policies.

The complaint includes 13 separate counts alleging:

  • Race discrimination under Title VII, NY state law and NY City law;
  • Disability discrimination under the Americans with Disabilities Act, NY state and NY City law; and
  • Violation of the plaintiffs’ Constitutional Rights actionable under 42 U.S.C. §1983 and 42 U.S.C. §1981

Here is a copy of the complaint: Bey v NY

By the way, the allegations are consistent with those made in the leading case in the area: Fitzpatrick v. City of Atlanta, 2 F. 3d 1112 (11th Cir., 1993). In Fitzpatrick both the trial court and the 11th Circuit found no merit in the firefighters’ claims, upholding the clean shaven requirement as necessary for the safety of the firefighters. Here is the summary of the case written by Judge Anderson of the 11th Circuit:

  • This suit was brought against the City of Atlanta by several African-American firefighters employed by the Atlanta Department of Public Safety, Bureau of Fire Services who suffer from a medical condition on account of which they cannot shave their faces.
  • Plaintiffs challenge a fire department regulation that requires all firefighters to be clean-shaven.
  • They allege (1) that this “no-beard” rule has a discriminatory disparate impact on African-Americans in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; (2) that the no-beard rule was adopted for racially discriminatory reasons in violation of Title VII; (3) that the rule discriminates against the handicapped in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); and (4) that the rule infringes the firefighters’ constitutional right to substantive due process of law.
  • The City defends the policy, contending that the respirator masks used by firefighters cannot safely be worn by bearded men.
  • The district court granted summary judgment for the City and the firefighters have appealed.
  • For the reasons set forth below, we affirm the judgment of the district court.

The decision later stated:

  • [T]he City has adduced evidence that safety considerations require firefighters to be clean-shaven, and plaintiffs have not adduced evidence sufficient to call that contention into question.
  • We hold that this same evidence suffices to carry the City’s movant’s initial summary judgment burden with respect to the issue of absence of pretext.
  • Thus, in order to avoid summary judgment, the firefighters must have adduced evidence that, when considered along with the City’s evidence, creates a genuine issue that the proffered safety justification is, in fact, a pretext for discrimination.
  • In light of the substantial evidence adduced by the City in support of its safety justification, we hold that no reasonable finder of fact could find the justification pretextual solely on the basis of the [disparate impact] of the City’s SCBA safety rule.
  • In light of the City’s substantial evidence that SCBA’s cannot adequately seal over shadow beards and the unrebutted reasonable inference that partial shaving would not be viable and safe for men with PFB, the firefighters’ evidence is insufficient to create a genuine issue as to the availability of an adequate reasonable accommodation.

Here is a copy of Fitzpatrick v. City of Atlanta.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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