Court Upholds No-Beard Rule for Jacksonville Firefighters

A US District Court judge has granted judgment to the City of Jacksonville, dismissing a lawsuit filed by thirty African American firefighters who claimed that the city’s requirement that they be clean-shaven was discriminatory. The firefighters filed suit in 2020 alleging the city’s refusal to grant them a continuing accommodation to have closely cropped shadow beards constituted disability and race discrimination. More on the original filing of the suit.

The firefighter-plaintiffs suffer from a painful skin condition known as Pseudofolliculitis Barbae (PFB), and contend that allowing them to keep closely cropped beards would be a reasonable accommodation. The city granted their request in April, 2015, but rescinded it in January, 2016 citing the need to comply with OSHA requirements.

Quoting from the ruling:

  • Plaintiffs are all African American males who suffer from a medical condition known as Pseudofolliculitis Barbae (PFB), a condition that affects up to 85% of African American men.
  • PFB causes significant pain, severe bumps, scarring, and deformities on the skin of afflicted individuals if they are clean shaven or continually shave with a razor.
  • Individuals diagnosed with this condition are advised to grow a beard to avoid triggering the effects of PFB.
  • At issue is whether the City discriminated against Plaintiffs when it required firefighters with PFB, which primarily affects African American men, to be clean shaven.
  • Plaintiffs allege race discrimination in violation of Title Vll of the Civil Rights Act of 1964 (Counts I and II) and disability discrimination under the ADA (Counts III and IV).
  • The City maintains two federal courts of appeal have ruled in factually similar cases that claims under the ADA are not viable. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1114 (11th Cir. 1993); Bey v. City of New York, 999 F.3d 157, 167 (2d Cir. 2021).
  • The City alleges that while the ADA may require an employer to offer a reasonable accommodation, the accommodation is not reasonable if it is prohibited by a binding safety regulation.
  • The ADA is not without limitations. Congress knew when it enacted the ADA that certain federal safety rules would limit its application as a matter of law.
  • Congress recognized the need for a defense to liability under the ADA based on other laws and regulations.
  • Courts have reviewed the interplay between federal safety regulations and the ADA’s requirements on employers.
  • In Bey, the Second Circuit evaluated the New York City Fire Department’s decision to rescind an accommodation for PFB under the ADA.
  • The Second Circuit determined the proposed accommodation, allowing minimal facial hair, did not satisfy the reasonable accommodation standard because of the OSHA regulations.
  • Stated otherwise, an employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by law.
  • Prior to Bey, the Eleventh Circuit addressed in Fitzpatrick v. City of Atlanta, a factually similar case.
  • Even though the City was not bound by the OSHA regulations, the Eleventh Circuit found the regulations were a “trustworthy bench mark” for assessing the City’s claim of a business necessity.
  • The court concluded OSHA regulations are a business necessity for firefighters because of the safety issues involved, and further found that any less restrictive alternatives would not be adequately safe.
  • Here, the City maintains it cannot offer an accommodation to Plaintiffs with PFB because the proposed accommodation would defy OSHA regulations.
  • As explained by the City, facial hair risks disturbing the tight seal between the face and SCBA mask which protects the firefighter from inhaling smoke or other toxic fumes when preforming job duties.
  • A tight mask seal also prevents air from leaking increasing the length a firefighter is able to use the mask while fighting a fire.
  • Although Florida has no OSHA-approved State Plan, it has adopted OSHA regulations as its governing law.
  • Akin to the FDNY in Bey, the City is compelled to comply with OSHA regulations because state law specifically adopts the federal regulations at issue.
  • Adopting Plaintiffs’ proposed accommodation would cause the City to violate state law. Plaintiffs’ proposed accommodation is not reasonable within the meaning of the ADA because it is specifically prohibited by a binding regulation.
  • Accordingly, Plaintiffs cannot fulfill their burden, and this Court finds judgment for the City on Counts III and IV.
  • Plaintiffs’ Complaint presents two Title VII claims: disparate treatment (Count I) and disparate impact (Count II).
  • The City maintains applicable OSHA regulations bar Plaintiffs claim under Title VII.
  • Title VII prohibits both intentional discrimination (known as “disparate treatment”) and those practices that inadvertently have a disproportionately adverse effect on minorities (known as “disparate impact”).
  • This Court finds these claims meet the same fate as Plaintiffs’ ADA claims.
  • Title VII does not require employers to depart from binding federal regulations.
  • Legally binding federal regulations present a complete defense.
  • This is so because Plaintiffs cannot overcome their burden of showing that JFRD refuses to adopt an available alternative employment practice.
  • The OSHA regulation in question strictly prohibits any facial hair between the mask and the wearer’s face.
  • Thus, any proposed alternative involving even a scant amount of facial hair would not be an available alternative.
  • As noted in Bey, there is no less restrictive method to overcome the regulation as written.
  • Because the City is required to comply with the OSHA regulations adopted by Florida law, Plaintiffs’ claims fail.
  • This Court finds judgment for the City on Counts I and II.
  • For the above reasons, this Court concludes judgment for the City is warranted as to Plaintiffs’ claims of disparate treatment (Count I) and disparate impact (Count II) under Title VII and claims of disparate treatment (Count III) and disparate impact (Count IV) under the ADA.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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