The Second Circuit holds that Black, male firefighters with Pseudo folliculitis Barbae (PFB) must be closely shaven regardless of an employer’s past practice or the pain, scarring, even boils, which shaving may cause. At one time, closely cropped beards were allowed without incident. But OSHA regulations unambiguously mandate clean shaves along the sealing edges of tight-fitting respirators which seal out toxic fumes. When New York adopted the federal regulations into its Labor Law compliance became mandatory regardless of the ADA.
The case is Bey v. City of New York, Nos. 20-456 (L), 20-650 (con) (2nd Cir. June 9, 2021. Up to 85% of Black males suffer with PFB. For several years New York’s Fire Department made exceptions. The city allowed firefighters to maintain closely shaved beards as long as firefighters were able to pass the mask-sealing tests. And apparently that worked for 3 or 4 years.
Then, in 2018 exceptions were no longer permitted. This hardline approach appeared to have a disparate impact, disparate treatment on Black males. However, everyone needed to comply. And mandating compliance with the federal regulation was apparently was not motivated because of any employee’s protected class membership. Under Title VII of the Civil Rights Act every plaintiff has the burden to show that an employer was more likely than not motivated by discriminatory animus or that no legitimate reason existed for the disparate impact or treatment of its employment actions.
Employers may not base employment decisions or apply policies using discriminatory motives or motivation. But it appeared that the plain language of OSHA regulations permitted no hair between a firefighter’s face and the sealing edge of a mask. The OSHA regulation was written plainly and unambiguously. Even if an employer had made an exception under the ADA, the court held that once it realized or recognized that it was not complying with the plain language of New York’s Labor Law which incorporated the OSHA regulations, it needed to stop. It did so and the lawsuit was initiated.
Both the United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit found that the FDNY had not violated Title VII. Even under McDonnel Douglas, the fire department had a legitimate, non-discriminatory reason for following an unambiguous OSHA regulation which became mandatory once adopted into New York’s Labor Law. If the fire department had not stopped making exceptions it would have violated unambiguous federal regulations, now mandatory in New York.
The remaining analysis was whether the Americans with Disabilities Act would permit a reasonable accommodation from compliance with the clean shaving along the sealing edge of masks. The firefighters proposed closely-cropped beards as they had worn without incident. But they never argued precisely how short or closely-cropped those beards should be and it may have been unduly burdensome if not impossible to determine whether any firefighter’s closely cropped or short beard was short enough for a mask to seal out toxic fumes.
The holding of this case appears somewhat harsh on its face. But without more objective standards about how closely cropped a beard should be or until manufacturers invent masks which seal toxic fumes even by those with beards, the decision appears sound. The result appears to impact many who bravely risk their lives for all of us but who’s to say that the shave mandate is not in their best interest as well.