By:  Renee Jiang, Francine Foner, Esq., and Ty Hyderally, Esq.

Are employers required to offer a medical accommodation to their employees under the Americans with Disabilities act (the “ADA”), if the requested accommodation is expressly prohibited by binding federal safety regulations?  In its recent decision in Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021), the Second Circuit Court of Appeals answered this question in the negative.

The plaintiffs in Bey were four Black firefighters with the New York City Fire Department (the “FDNY”).  They all suffer from a skin condition called Pseudofolliculitis Barbae or “PFB,” which results in persistent irritation and pain following shaving.  PFB affects between 45% and 85% of Black men.  Id. at 161.  Initially, the FDNY offered an accommodation to the firefighters permitting them to be unshaven.  But the FDNY rescinded the accommodation after learning that United States Occupational Safety and Health Administration (“OSHA”) regulations require that firefighters exposed to dangerous smoke and toxic fumes wear a self-contained breathing apparatus and that there be no facial hair between the sealing surface of the breathing apparatus and the firefighter’s face.  The firefighters that had received the accommodation were instructed that they had to be clean shaven or would be placed on light duty.  The firefighters brought suit in the United States District Court for the Eastern District of New York, claiming, among other things, disability discrimination under the ADA and disparate treatment and impact based upon race under Title VII. The firefighters moved for summary judgment on their ADA claims, arguing that there were no material factual disputes as to their having satisfied all elements of their ADA claims: (1) that the FDNY is subject to the ADA; (2) Plaintiffs are qualified to work as full duty firefighters; (3) Plaintiffs are disabled within the meaning of the ADA and; (3) they suffered an adverse employment action.  The District Court agreed and granted Plaintiffs’ motion for summary judgment on their ADA claims. Bey v. City of New York, 437 F. Supp. 3d 222, 236, 2020 U.S. Dist. LEXIS 14844, *24, 2020 WL 467507.

The Defendants also moved in the District Court for summary judgment on all other claims, including the Title VII claim, asserting that the firefighters had not produced any evidence showing that they were similarly situated to the unidentified Caucasian firefighters who were alluded to, or proof that an inference of discrimination could be drawn from Defendants’ conduct.  This time the District Court agreed with Defendants and granted Defendants’ motion for summary judgment on the Title VII claim.  Id.  Plaintiffs’ state and city law claims were dismissed without prejudice. Id. at *235.

Both parties appealed.  On June 9, 2021, the Second Circuit reversed the District Court’s decision granting Plaintiff’s summary judgment on their ADA claim, and affirmed the grant of summary judgment in favor of the FDNY on the Plaintiffs’ Title VII claim.  As to the ADA claim, the Court held that “[a]n 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.”  Bey, 999 F.3d at 168.  The Court similarly held that the Title VII disparate impact claim based on race should be dismissed, opining “Title VII cannot be used to require employers to depart from binding federal regulations.”  Id. at 170.  Therefore, the Bey Court held that employers “cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.”  Id.

However, when there are no federal safety regulations at play, the Second Circuit has found that the ADA requires an employer to provide employees who suffer from PFB with a reasonable accommodation to an employer’s clean shave policy.  See e.g., Forkin v. UPS, 2020 U.S. Dist. LEXIS 255487 (E.D.N.Y. 2020) (denying motion to dismiss plaintiff’s PFB-based ADA claim challenging UPS’s shaving policy).  The Third Circuit has also come to the same conclusion. See e.g., Lewis v. Univ. of Pa., 779 F. App’x 920 (3d Cir. 2019) (reversing District Court’s summary judgment ruling against university police officer’s PFB-based ADA claim); FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999) (noting that the Newark Police Department has always allowed medical exemptions based on PFB so as to comply with the ADA).

Thus, while courts recognize that the ADA requires employers to modify workplace grooming policies to accommodate employees suffering from PFB, they have balanced this need against the competing obligation to ensure employees’ safety in the workplace when federal regulations require otherwise.

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