999 F.3d 157
2d Cir.2021Background
- Plaintiffs are four Black FDNY firefighters who suffer from pseudofolliculitis barbae (PFB), a condition that makes shaving painful and can cause scarring; PFB disproportionately affects Black men.
- FDNY grooming policy requires firefighters to be clean-shaven where a tight-fitting respirator (SCBA) seals against the face; compliance with OSHA respiratory-protection standard (29 C.F.R. § 1910.134) is required by New York law.
- From 2015–2018 FDNY granted limited medical accommodations allowing very short, unshaven facial hair for firefighters with PFB if they passed OSHA fit tests; no safety incidents were reported during that period.
- In 2018 FDNY revoked the accommodation after concluding OSHA prohibited any facial hair between the respirator seal and the face; firefighters sued under the ADA and Title VII seeking reinstatement and damages.
- The district court granted summary judgment to plaintiffs on the ADA claim (ordering reinstatement of the accommodation) but ruled for FDNY on other claims; the Second Circuit reversed the ADA ruling and affirmed rejection of the Title VII claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSHA's respirator standard allows short facial hair accommodations | Regulation is ambiguous; OSHA guidance permits short/trimmed facial hair that does not protrude under the seal | Regulation forbids any facial hair between the face and sealing surface; unambiguous ban | Regulation is unambiguous: no facial hair where the respirator seals; accommodation prohibited |
| Whether employer must provide an ADA accommodation that federal safety regs forbid | FDNY must consider plaintiff evidence and cannot rely solely on OSHA; prior safe use shows accommodation reasonable | Binding federal regulation precludes the accommodation; employer need not defend the regulation or risk noncompliance | Employer need not offer accommodations expressly prohibited by binding federal law; such accommodations are unreasonable/defensive bar |
| Title VII disparate-impact claim based on grooming policy | Policy disproportionately harms Black men (PFB prevalence) and thus has disparate impact | Compliance with OSHA is a business necessity and a complete defense | Disparate-impact claim fails; legally required compliance with OSHA satisfies business-necessity defense |
| Alternative narrower accommodations (e.g., permitting a goatee) raised on appeal | FDNY's policy is broader than OSHA; at minimum FDNY should allow facial hair OSHA permits | Argument raised too late; not litigated below | Argument waived on appeal and not considered by the court |
Key Cases Cited
- Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (employer not required to replace or defend a binding federal safety qualification to satisfy ADA)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination claims)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and prerequisites for deferring to agency interpretations of ambiguous rules)
- Aleuitan Capital Partners, LLC v. Scalia, 975 F.3d 220 (2d Cir. 2020) (applying Kisor and requiring traditional tools of construction before Auer deference)
- McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (plaintiff's burden to identify reasonable accommodations; burden shifts to employer to show undue hardship)
- Mandala v. NTT Data, Inc., 975 F.3d 202 (2d Cir. 2020) (disparate-impact framework and business-necessity defense)