FDNY Prevails in Second Facial Hair Lawsuit

FDNY has prevailed once again in a lawsuit challenging its no-beard policy. In a ruling handed down yesterday, US District Court Judge Nicholas G. Garaufis concluded the OSHA prohibition of facial hair at the SCBA interface serves to create an undue hardship that relieves fire departments of an obligation to grant accommodations on account of a firefighter’s religious beliefs.

The suit was filed in 2018 by firefighter Kevin Hamilton, who alleged that the city’s refusal to grant him an accommodation to allow closely-cropped facial hair constitutes religious discrimination in violation of state and federal law. The suit followed an earlier action filed by four FDNY firefighters who alleged race and disability discrimination. Both suits were prompted by a change in FDNY policy that reversed an earlier policy of accommodating such requests provided a fit test could be achieved.

In ruling in the Hamilton case, Judge Garaufis acknowledged the Second Circuit Court of Appeals ruling in earlier case, Bey v. City of New York, “resolves much of the parties’ dispute as to the meaning of OSHA’s regulation and the FDNY’s implementation of that regulation.”

Quoting from the decision:

• Kevin Hamilton practices Judaism and maintains facial hair as an expression of his faith.
• He is also a firefighter with the Fire Department of the City of New York, an agency of the City of the New York, which has a clean-shave grooming policy for all full-duty firefighters.
• FDNY previously granted Plaintiff a religious accommodation to maintain close-cropped facial hair while continuing to serve as a full-duty firefighter.
• But the Department later ended its accommodation program and revoked Plaintiff’s exemption from the clean-shave policy.
• As a result, Plaintiff could not comply with the grooming policy, and the FDNY transferred from full-duty firefighting responsibilities to light duty.
• The FDNY’s grooming policy aligns with applicable federal regulation, specifically, OSHA’s “Respiratory Protection Standard,” 29 C.F.R. 1910.134.
• Here, Plaintiff suffered an adverse employment action because his placement on light duty has resulted in significantly diminished material responsibilities in the unique context of the FDNY
• Because placement on light duty constitutes an adverse employment action, Plaintiff has established his prima facie case.
• The burden shifts to Defendants to show that accommodating Plaintiff presents an undue hardship on the FDNY.
• In light of the Second Circuit’s decision in Bey v. City of New York, Defendants easily satisfy their burden.
• In Bey, the plaintiff firefighters, subject to the same clean-shave grooming policy, brought a failure-to-accommodate claim under the ADA.
• The court found that OSHA’s Respiratory Protection Standard “clearly requires firefighters to be clean shaven where a [respirator] seals against their face.”
• And this regulation is binding on the FDNY.
• Thus, the FDNY “cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law.”

With that Judge Garaufis granted the city’s motion for summary judgment, and ordered the case closed. Here is a copy of the decision.