Court Rules FDNY Must Accommodate Facial Hair Despite OSHA

A federal judge has ruled that FDNY must reinstate an accommodation granted to African American firefighters suffering from Pseudofolliculitis Barbae that permits facial hair in the chin, cheek and neck area provided it does not cause leakage around the mask’s seal. The firefighters, Salik Bey, Clyde Phillips, Steven Seymour, and Terrel Joseph, filed suit in 2018 alleging race and disability discrimination after the city instituted a new SCBA policy that required them to be close shaven in the chin area.

Senior United States District Judge Jack B. Weinstein ruled yesterday that city did not commit race discrimination by instituting the new policy, but did violate the Americans with Disabilities Act by not allowing the firefighters an accommodation to maintain “closely-cropped facial hair, uncut by a razor.”

As explained in the decision:

• Because of their skin condition, Plaintiffs sought a medical accommodation from the Department, allowing them to maintain closely-cropped facial hair, uncut by a razor.
• Before the requests were granted, Plaintiffs were subjected to a “Fit Test”.
• A Fit Test is a standard test designed by OSHA to “ensure[ ] that the face piece of the SCBA gets the proper seal so that … what the member is breathing is the air from the tank and not anything that may be contaminated.”
• Observing no leakage from the FDNY-approved mask when it was worn by individuals like Plaintiffs with closely-cropped facial hair, the requested accommodation was granted by the FDNY.
• [T]he accommodation was fully applicable for two and a half years before the present non-accommodation regime.
• There were no reports that it increased the risks to firefighters or civilians:
• After a review of the Department’s safety standards initiated by then-FDNY Acting Chief of Safety Joseph Jardin, the medical accommodation was revoked.
• The following criteria were set by the FDNY: If Plaintiffs shaved all facial hair in the chin area, they would maintain their status as full duty firefighters; otherwise, they would be placed on light duty.
• Defendants now argue that that same accommodation—permitting Plaintiffs to maintain closely-cropped facial hair uncut by a razor—is an undue hardship because it would require the FDNY to be “[non]compliant with the requirements of OSHA and NIOSH and the guidelines set forth by the NFPA.”
• The court is not persuaded.
• The only development of significance from when the prior accommodation went into effect, in August 2015, to now is a dispute as to the proper reading of OSHA’s Respiratory Protection Standard (“RPS”). RPS provides, in relevant part:
  • The employer shall not permit respirators with tight-fitting facepieces to be worn by employees who have: Facial hair that comes between the sealing surface of the facepiece and the face or that interferes with valve function; or
• Defendants admit that no heightened safety risk to firefighters or the public was presented by the accommodation previously in effect.
• Two and a half years passed without incident, and Plaintiffs continued to perform their jobs satisfactorily.
• The FDNY’s decision to abandon the prior accommodation was not based on any actual safety risks to firefighters or the public.
• Rather, driving the calculus was bureaucracy.
• Defendants cite no case law indicating that such bureaucratic considerations are a viable undue hardship defense; the court declines to so find.
• In effect, the fire department’s new shaving mandate presented Plaintiffs with an objectionable “take it or leave it” proposition: shave down to the skin with a razor and risk permanent injury, or be reassigned to light duty.
• Placement on light duty, although temporary, was inarguably adverse to Plaintiffs.
• A blow to those who visualize themselves as public servants, Plaintiffs were forced to eschew a highly-admired and self-fulfilling aspect of their work as firefighters; they endured significantly diminished responsibilities and tangibly worse working conditions.
• This establishes that they were subjected to adverse employment action and satisfies the fourth element of Plaintiffs’ prima face case.
• [As for the race discrimination allegations] Plaintiffs’ disparate treatment claim fails.
• Alleged by Plaintiffs is that they were treated differently than Caucasian firefighters who, without accommodations, were allegedly allowed to maintain facial hair despite the FDNY’s clean shave policy.
• “If a plaintiff relies on evidence that he was treated less favorably than employees outside of his protected group to raise an inference of discriminatory intent, he must establish that he was ‘similarly situated in all material respects’ to those employees.”
• Plaintiffs have not produced evidence showing that they were similarly situated to the unidentified Caucasian firefighters they allude to.
• By focusing solely on white individuals employed by the FDNY as full duty firefighters who were allegedly permitted to maintain facial hair, Plaintiffs mistakenly leap to the conclusion that they were subjected to disparate treatment.
• Plaintiffs’ motions for summary judgment on the failure to accommodate claim and disability discrimination claim under the ADA are granted.
• The medical accommodation previously in effect for full duty FDNY firefighters is ordered reinstated.
• This order and judgment is stayed for ten days to permit Defendants to seek a longer stay from the Court of Appeals.

Here is a copy of the decision:

I generally do not like to editorialize my posts, but this case has the potential to impact fire departments beyond FDNY due to FDNY being FDNY. What Judge Weinstein is saying (whether he realizes it or not), is that based upon a limited data set of a handful of FDNY firefighters over a two and a half year period, it is safe for firefighters to ignore the requirements / recommendations of OSHA, NIOSH and the NFPA relating to SCBA facepiece seals. It also appears he may have misinterpreted a letter from OSHA on hair that interferes with the facepiece seal. The ruling quotes from a May 9, 2016 OSHA Interpretative Letter stating:

• The Respiratory Protection standard, paragraph 29 CFR 1910.134(g)(1)(i)(A), states that respirators shall not be worn when facial hair comes between the sealing surface of the facepiece and the face or that interferes with valve function. Facial hair is allowed as long as it does not protrude under the respirator seal, or extend far enough to interfere with the device’s valve function. Short mustaches, sideburns, and small goatees that are neatly trimmed so that no hair compromises the seal of the respirator usually do not present a hazard, and, therefore, do not violate paragraph 1910.134(g)(1)(i).

According to Judge Weinstein, the above provision “foils” the city’s entire defense. I am scratching my head as to how. A plain reading of the letter is that hair on the chin or elsewhere on the face where it will protrude into the area of facepiece seal, is prohibited by OSHA.

Take the time to read the case. Judge Weinstein’s determination that facial hair on the chin poses no risk to firefighters was based upon the slimmest of evidence: comments made during depositions of a few witnesses who lacked knowledge of any problems while the original accommodation was in effect. There was no reference to any scientific research into facepiece seals and firefighter safety. “Two and a half years passed without incident, and Plaintiffs continued to perform their jobs satisfactorily.” In other words, the judge’s ruling to ignore a federal regulation was based upon the anecdotal experience of a few witnesses.

That is crazy. Imagine a federal judge ordering an airline to ignore an FAA medical mandate (uncontrolled narcolepsy) and allow a pilot to continue to fly based upon anecdotal evidence that we haven’t had a problem so far… Really… is that the new standard? So if someone drives a car without wearing a seatbelt for 2 ½ years without injury it is suddenly safe drive a car without seatbelts?

Personally, if a shadow beard does not increase the risk to firefighters, then the Judge got it right and congratulations to him for ruling the way he did. However, it does not appear from the decision that there was any scientific basis upon which to order FDNY to violate OSHA requirements. Also, there was no discussion of judicial deference to federal agencies authorized by Congress to create regulations within their assigned area of expertise. Who needs OSHA, or NIOSH, or the NFPA (not a federal agency but a highly respected authority in the industry) when a federal judge after listening to a few anecdotal witnesses has the expertise to determine what is safe?

Perhaps this ruling will be enough to prompt OSHA and/or NIOSH to obtain the necessary scientific data to rebut or support Judge Weinstein’s ruling. That would be the tail wagging the dog: doing research to support or disprove a court ruling instead of the other way around. It should be the other way around with court rulings following the science!