A federal judge has ruled that fourteen District of Columbia firefighters may proceed with their disability accommodation claims arising out of a departmental grooming policy that prohibited certain facial hair. The ruling allows the firefighters to pursue claims under the Americans with Disabilities Act and the DC Human Rights Act, while dismissing most of their discrimination and retaliation claims.

The case was brought by fourteen Black firefighters/EMTs employed by the DC Fire and Emergency Medical Services Department who suffer from pseudofolliculitis barbae (PFB), a skin condition that makes shaving painful and can cause bumps, cysts, and infections. The condition disproportionately affects Black men. The suit alleges disability discrimination, failure to accommodate, retaliation, and race discrimination. Here is our earlier coverage.

All fourteen firefighters had served with the department for more than a decade. Prior to March 2020, they had been permitted to maintain facial hair while performing their regular firefighting and EMS duties. According to the complaint, they had successfully passed respiratory protection fit tests despite their facial hair.

In March 2020, the department implemented Bulletin 10, a grooming policy prohibiting facial hair that interfered with the sealing surface of a respirator. The policy did not require firefighters to be completely clean-shaven, but it prohibited beards that extended into the mask’s sealing area.

Firefighters who could not comply because of a medical condition were required to seek an accommodation through the department’s medical evaluation process. Rather than allowing the plaintiffs to continue their regular firefighting assignments, the department reassigned them to administrative and logistics duties.

The reassignments substantially changed their working conditions. Instead of working 24-hour shifts, the firefighters were assigned to eight-hour shifts, five days per week. They alleged that the changes reduced their income and overtime opportunities, interfered with family responsibilities, and deprived them of training and promotional opportunities.

In July 2021, the department modified its policy through Bulletin 12, allowing firefighters with a medical necessity to maintain facial hair up to one-quarter inch long, provided they could pass a respirator fit test.

Twelve of the plaintiffs eventually returned to full firefighting and EMS duties. Two others, Tony Davis and Kevin Maynor, were assigned exclusively to EMS duties because they could not meet the revised grooming requirements. They alleged that the EMS-only assignments were more physically demanding and deprived them of the opportunity to perform the firefighting duties for which they had been trained.

The District sought dismissal of the case, arguing that the reassignments constituted reasonable accommodations because the firefighters remained employed while being permitted to maintain their facial hair. It also argued that allowing firefighters with beards to continue firefighting would violate OSHA and respiratory protection safety requirements. The District further maintained that the COVID-19 pandemic made alternative accommodations impractical.

The firefighters argued that the department failed to engage in the required interactive process to determine whether alternative accommodations would permit them to continue firefighting. Those alternatives included allowing them to demonstrate an adequate seal through fit testing or considering powered air-purifying respirators (PAPRs). They maintained that the department should have considered these alternatives before removing them from their regular firefighting assignments.

Chief Judge James E. Boasberg rejected the District’s arguments as grounds for dismissing the failure-to-accommodate claims. The court explained that while reassignment can constitute a reasonable accommodation under the ADA, it is generally considered a last resort when an employee can be accommodated in his existing position. The court concluded that the firefighters had adequately alleged that the department failed to consider reasonable accommodations before transferring them out of their regular assignments.

As for the respiratory protection requirements, the court acknowledged that OSHA regulations prohibit facial hair between the sealing surface of a tight-fitting respirator and the wearer’s face, regardless of whether the individual can pass a fit test. However, the court noted that federal OSHA requirements do not directly apply to the District as a governmental employer, although DC law requires compliance with occupational safety standards consistent with federal OSHA requirements.

The court seemed somewhat confused by the firefighters’ PAPRs argument, suggesting that PAPRs might provide a reasonable accommodation allowing the firefighters to continue performing their firefighting duties. However, anyone with any degree of knowledge in this area understands that PAPRs cannot be used in IDLH atmospheres and are not substitutes for SCBA during interior structural firefighting. The court did not explain how firefighters using PAPRs could perform essential firefighting functions that require SCBA.

The court also rejected the District’s argument that the COVID-19 pandemic made alternative accommodations impractical. Whether the proposed accommodations would have imposed an undue hardship involved factual questions that could not be resolved on a motion to dismiss.

The court dismissed the plaintiffs’ separate claims of intentional disability discrimination and most of their retaliation and race discrimination claims. It found that the allegations generally failed to establish that the challenged employment actions were motivated by discriminatory or retaliatory intent, as distinguished from the department’s application of its grooming policy.

One firefighter, Juan Melton, was permitted to proceed with additional claims involving promotional opportunities for Fire Inspector. His disability-retaliation claim survived with respect to an October 2021 promotion process, based on allegations that firefighters who had not sought accommodations or filed discrimination charges received more favorable consideration despite having comparable or inferior qualifications.

Melton’s race-discrimination claim survived with respect to an October 2023 promotion process. He alleged that he was ranked last among ten candidates while a white firefighter with substantially less experience and a lower examination score was ranked fifth.

The court dismissed Melton’s retaliation claim concerning the 2023 promotion process and his race-discrimination claim concerning the 2021 process.

The ruling permits all fourteen firefighters to proceed with their failure-to-accommodate claims under the ADA and DC Human Rights Act, limited to the department’s conduct after their accommodation requests. Melton may also proceed with the two individual claims involving promotional opportunities.