BREAKING NEWS: Second Circuit Upholds FDNY’s No Beard Policy

The Second Circuit Court of Appeals has overturned a lower court decision that concluded that FDNY must allow firefighters with a skin condition an accommodation to have beards. In doing so the court concluded in clear and unambiguous terms… and I quote: “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.”

The case was brought back in 2018 by four FDNY firefighters, Salik Bey, Clyde Phillips, Steven Seymour, and Terrel Joseph. They alleged race and disability discrimination after the city instituted a new SCBA policy that required them to be clean shaven in the facepiece interface area. All four firefighters are African American and suffer from Pseudofolliculitis Barbae, a painful skin condition that is more common among African Americans. They sought permission to maintain “closely-cropped facial hair, uncut by a razor” as a reasonable accommodation.

The city argued that OSHA prohibits facial hair that crosses the facepiece seal. In January, 2020, Senior US District Judge Jack B. Weinstein ruled in favor of the firefighters concluding the city’s refusal to accommodate the firefighter’s skin condition violated the Americans With Disabilities Act. In doing so, it appears that Judge Weinstein misinterpreted an OSHA letter as allowing facial hair at the point where the mask seals. He also considered the fact that the four firefighters had been allowed to have light beards for  2 ½ years as proof the accommodation was reasonable and safe. See more. Despite finding an ADA violation, Judge Weinstein ruled that the city’s conduct did not constitute race discrimination.

The Second Circuit reversed Judge Weinstein on the ADA ruling. Quoting from the decision:

  • At the heart of this appeal is a question about the interplay between federal safety regulations and the ADA’s requirement that employers must offer reasonable accommodations to employees with disabilities.
  • The Firefighters have identified what they believe to be a reasonable accommodation to the FDNY’s grooming policy – that they be permitted to maintain a minimal amount of facial hair in the neck, chin, and cheek area.
  • The Firefighters have attempted to demonstrate the safety and cost effectiveness of that accommodation through the introduction of expert reports and other evidence.
  • The FDNY has responded primarily by arguing that this accommodation is expressly prohibited by OSHA safety regulations, which are binding on the FDNY via state law.
  • To accommodate their PFB, the Firefighters requested that they be permitted to grow a minimal amount of facial hair, somewhere in the neighborhood of one millimeter to one quarter inch in length, on their neck, chin, and cheeks.
  • The FDNY rejected that proposed accommodation, not because of implementation difficulties or costs, but because the FDNY says the accommodation is expressly prohibited by OSHA’s “respiratory protection standard,” 29 C.F.R. § 1910.134, a federal regulation governing safe respirator usage that is binding on the FDNY under New York state law.
  • The respiratory-protection standard makes clear that individuals cannot use a tight-fitting respirator (such as an SCBA) if they have facial hair where the respirator seals against the mask-wearer’s face.
  • Accordingly, the respiratory-protection standard clearly requires firefighters to be clean shaven where an SCBA seals against their face.
  • Having concluded that the Firefighters’ proposed accommodation is prohibited by binding OSHA regulation, we must decide what to make of that fact.
  • As the Firefighters see it, the regulation is not a sufficient reason for the FDNY to deny them the accommodation they seek.
  • That is so, they say, not only because the FDNY previously provided this accommodation for years without incident, but also because the Firefighters introduced several expert reports suggesting that a short beard is unlikely to affect respirator performance.
  • The Firefighters’ position is that, in light of the empirical and expert evidence that they have brought to bear, the FDNY must defend the wisdom of OSHA’s regulation on the merits.
  • Again, we disagree.
  • 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.
  • At bottom, OSHA’s regulations are binding on the FDNY and prohibit the accommodation that the Firefighters seek.
  • That ends the matter.
  • Of course, the Firefighters retain the ability to present their evidence to OSHA if they continue to believe that the respiratory-protection standard is unduly restrictive; but it is OSHA to which such a challenge should be directed, not the FDNY, and not the courts.
  • The Firefighters’ Title VII disparate impact [race discrimination] claim mirrors their ADA claim and meets a similar fate.
  • Just as in the ADA context, we conclude that Title VII cannot be used to require employers to depart from binding federal regulations.
  • Nor can we agree with the Firefighters that the FDNY’s failure to consistently enforce the respiratory-protection standard means that complying with the regulation is not a business necessity.
  • In effect, the Firefighters argue that because the FDNY flouted binding safety standards in the past, we must order it to continue doing so in the future.
  • We cannot endorse such a view. Indeed, while the Firefighters’ argument may have some purchase in cases concerning an employer’s failure to abide by its own regulations, the same cannot be said where the regulation was devised by an independent federal agency and is legally binding on the employer.  
  • So, regardless of whether the FDNY has consistently enforced the respiratory-protection standard, complying with that legally binding federal regulation is, by definition, a business necessity and presents a complete defense to the Firefighters’ disparate impact claim.

Here is a copy of the decision handed down today:

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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