Reasonable Accommodation and Disparate Impact: Clean Shave Policy Discrimination in Today’s Workplace

Abstract

This article examines Bey v. City of New York — a recent Second Circuit case where four Black firefights suffering from Pseudofolliculitis Barbae (a skin condition causing irritation when shaving which mostly affects Black men) challenged the New York City Fire Department’s Clean Shave Policy — with an intersectional approach utilizing legal theories of racial, disability, and religious discrimination.

Introduction

Salik Bey, Terrel Joseph, Steven Seymour, and Clyde Phillips are Black firefighters employed by the New York City Fire Department (FDNY).¹ They all suffer from a skin condition called Pseudofolliculitis Barbae (PFB), which results in persistent irritation and pain following shaving.² PFB affects up to 85% of Black men.³ A clean shave policy, which requires “all full-duty firefighters to be clean shaven in the neck, chin, and cheek area,” is a part of the FDNY’s grooming policy.⁴ From 2015 to 2018, the FDNY provided medical accommodations to firefighters with PFB, permitting them to maintain closely cropped beards.⁵ Following a review in May 2018, the FDNY determined that the accommodation was prohibited by regulations of the United States Occupational Safety and Health Administration (OSHA) and revoked the program.⁶ The firefighters were required to choose between becoming clean-shaven and suffering harmful medical consequences or being placed on light duty⁷ and never being able to enter a fire site again.

Grooming policy discrimination cases involving hair length, hair texture, or hair styles in the workplace have been prevalent since the enactment of Title VII of the Civil Rights Act of 1964 (Title VII).⁸ Discrimination with regard to male facial hair is no exception — the Equal Employment Opportunity Commission (EEOC) issued guidance on this topic as early as 1989.⁹ Religious or medical reasons such as PFB may restrict how a man maintains his facial hair.¹⁰ A clean shave policy discrimination claim may arise when an employer disparately enforces such policy against male employees’ protected traits.¹¹ PFB-related clean shave policy discrimination implicates both race and disability, because PFB disproportionately affects Black men and has not been considered a disability within the meaning of the Americans with Disabilities Act (ADA) until recent years.¹²

The FDNY firefighters sued their employer in New York federal court for disability and racial discrimination.¹³ It is one of the most recent clean shave policy discrimination cases and probably the first to examine the interaction of reasonable accommodation for a disability under the ADA, disparate impact in a racial discrimination claim under Title VII, and federal safety regulations under OSHA.¹⁴

This Paper examines recent developments in clean shave policy discrimination litigation — especially cases where Black plaintiffs suffer from PFB — with an intersectional approach,¹⁵ utilizing legal theories of racial discrimination, disability discrimination, and religious discrimination. Part I surveys the history of clean shave policy discrimination litigation in the broader context of grooming policy discrimination, and the legal claims often used to challenge discriminatory employment practices. Part II conducts a case study on the recent Second Circuit case Bey v. City of New York to illustrate current challenges to clean shave policy discrimination litigation such as the interaction of the ADA and Title VII with federal safety regulations like OSHA rules. Part III provides policy recommendations in light of the Bey decision. This Paper proposes that employers should design more equitable grooming policies in the workplace,¹⁶ that courts should adopt a revised evidentiary framework and an intersectional approach towards grooming policy discrimination cases,¹⁷ and policymakers such as drafters of the CROWN Act should reevaluate their approach and also advocate more for Black men.¹⁸

This Paper proposes that employers should design more equitable grooming policies in the workplace, that courts should adopt a revised evidentiary framework and an intersectional approach towards grooming policy discrimination cases, and policymakers such as drafters of the CROWN Act should reevaluate their approach and also advocate more for Black men.

I. Background

A. History of Grooming Policy Discrimination and Hair Discrimination

Grooming is a major life activity.¹⁹ Federal regulations implementing the ADA included “caring for oneself” as one of the non-exhaustive “major life activities.”²⁰

Black people often risk losing employment and educational opportunities because of their hair²¹ and suffer from grooming policy discrimination and hair discrimination. Because “[t]here is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.”²²

In the workplace, grooming policy discrimination, or grooming codes discrimination, is defined by Professor Wendy Greene as “the specific form of inequality and infringement upon one’s personhood resulting from the enactment and enforcement of formal as well as informal appearance and grooming mandates, which bear no relationship to one’s job qualifications and performance.”²³ According to Professor Greene, such mandates implicate protected categories under anti-discrimination laws including race, color, age, disability, sex, and/or religion.²⁴

An example of grooming policy as racial discrimination includes when Black employees with tightly curled hair textures are pressured to straighten or relax their hair or prohibited from wearing certain hairstyles by their employers to conform to white and European standards of beauty, and they suffer physical, emotional, and financial harm as a result.²⁵

Our society has been making gradual progress in understanding the relationship between grooming policy discrimination and race. In seminal cases like Rogers v. American Airlines Inc. ²⁶ and EEOC v. Catastrophe Management Solutions ²⁷ concerning grooming policy discrimination against Black women’s hairstyles, courts have held that afros are protected traits, but braids are not²⁸ — because “afros are racial but locks are cultural”²⁹ — under the so-called “immutability doctrine.”³⁰ Professor Greene argues that that this doctrine is a legal fiction — “a rule created by judicial, legislative, and political bodies, which is not based in fact, yet is treated as such in legitimating zones of protection and inclusion.”³¹ Other legal scholars further argue that the courts should take a cue from the interpretation of “immutability” in sexual orientation cases³² such as Bostock v. Clayton County,³³ to read race as a social and legal construct.³⁴

Such advocacy has also led to the creation of the CROWN Act in 2019 — “a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.”³⁵ The CROWN Act provides a framework legislation whose various state versions have been signed into law in 19 states, and its federal version has passed the U.S. House of Representatives and currently sits with the U.S. Senate.³⁶

B. Clean Shave Policy Discrimination and PFB

Similar to “an employer’s hyper-regulation of a Black woman’s natural hair … based upon subjective and paternalistic ideals about what management finds ‘attractive,’ ‘acceptable,’ and therefore ‘permissible’ in the workplace,”³⁷ clean shave policy discrimination against Black men also represents a gendered notion of what is presentable and professional.

PFB is primarily caused by the curved shaped of the hair follicle and tightly curled hair structure but can be associated with an additional genetic predisposition (KRT75) predominately affecting Black men.³⁸ It is medically recommended that individuals with PFB should avoid shaving down to the skin.³⁹

Many employers enforce a clean shave policy disregarding Black male employees’ inability to shave. Some employers might even be unaware of what PFB is. For example, in Forkin v. UPS, when an employee was trying to seek accommodations for his PFB, UPS’s labor manager stated: “[N]o disrespect, but I can go to any doctor and get any bullshit note I want to … [.] I’m just calling it how I see it.”⁴⁰ However, in reality, some Black employees might have to go through laser hair removal on their face to comply with an employer’s clean shave policy.⁴¹

PFB has also been described as “the most significant skin condition” amongst U.S. Army servicemen.⁴² Black servicemen with PFB suffer from the stigma of being perceived as lazy and unprofessional, and negative impacts on career advancement and personal life.⁴³

In the workplace, there are several notable PFB-related cases since the 1990s, including Fitzpatrick v. City of Atlanta (granting summary judgment for employers),⁴⁴ Bradley v. Pizzaco of Nebraska, Inc. (upholding disparate impact on Black employees),⁴⁵ and Stewart v. City of Houston.⁴⁶

C. Methods of Challenging Clean Shave Policy Discrimination

Black male employees with PFB who are banned from wearing facial hair have often challenged an employer’s clean shave policy for disability discrimination under the ADA and race discrimination under Title VII, under the doctrines of disparate treatment or disparate impact.

1. ADA — Disability Discrimination

Plaintiffs with PFB challenging an employer’s clean shave policy can bring disability discrimination claims under the ADA for an employer with 15 or more employees.⁴⁷

Like other types of discrimination claims, failure to accommodate claims under the ADA are subject to the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green.⁴⁸ The plaintiff must establish the four elements of a prima facie case:

(1) [The plaintiff] is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, [the plaintiff] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.⁴⁹

If a plaintiff suggests reasonable accommodations, the burden of proof shifts to the employer to demonstrate that such accommodations would present undue hardships and would therefore be unreasonable.⁵⁰ An “undue hardship” is “an action requiring significant difficulty or expense.”⁵¹

Once the plaintiff establishes a prima facie case, the employer can defend the claim by “articulat[ing] some legitimate, nondiscriminatory reason for” not accommodating.⁵² If a defendant produces admissible evidence showing legitimate business reasons, “the burden shifts back to the plaintiff to demonstrate by competent evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”⁵³

Before the ADA Amendments Act of 2008 (ADAAA),⁵⁴ it was hard to prove that PFB constituted a disability because the Supreme Court had narrowly interpreted the concept.⁵⁵ After the ADAAA instructed courts to construe the “definition of ‘disability’… in favor of broad coverage,”⁵⁶ courts grew more inclined to find PFB as a disability,⁵⁷ although some still express doubt.⁵⁸

2. Title VII — Sex, Race, and Religious Discrimination

There are five protected classes under Title VII: race, color, religion, sex, and national origin.⁵⁹ According to the EEOC, clean shave policy discrimination claims are usually brought based on sex, race, or religion.⁶⁰ To challenge an employer’s clean shave policy as sex discrimination, “federal courts have generally held that sex-differentiated grooming standards do not violate Title VII.”⁶¹

Some Black men might not be able to shave for both PFB-related and religious reasons and might be able to bring their claims as both race and religious discrimination. The overlap might be small — for example, only 2% of Black Americans are Muslim.⁶² But many religions prohibit shaving at different degrees, such as Islam, Judaism, Sikhi, and Asatru — a traditional Norse Pagan religion.⁶³ Even though this Paper focuses on race and disability discrimination, the analysis informs discussions on religious discrimination as well.

As a result, Black plaintiffs challenging a clean shave policy often bring a Title VII race discrimination claim under either a disparate treatment theory or a disparate impact theory.⁶⁴

3. Title VII — Disparate Treatment & Disparate Impact

Private Title VII actions, regardless of whether based on race, color, religion, sex, and/or national origin discrimination, fall into either of two types of cases: disparate treatment or disparate impact.⁶⁵

The central issue in a disparate treatment claim is whether the employer’s actions were motivated by discriminatory intent.⁶⁶ A disparate treatment challenge to a clean shave policy based on race can only prevail if the employee can prove that the employer instituted the policy to exclude Black males from the workplace, which requires a case-by-case, fact-specific analysis.

Plaintiffs can also recover by claiming that an employment policy impacted members of a protected classification by Title VII in a discriminatory pattern — a disparate impact claim.⁶⁷ Title VII disparate impact claims adopt the McDonnell Douglas burden-shifting framework.⁶⁸ For example, in the 1971 case Griggs v. Duke Power Co., once the plaintiff established a prima facie case, the burden shifted to the defendant to justify the disputed practice — “[t]he touchstone is business necessity.”⁶⁹ However, courts’ standards for these cases are evolving. In Wards Cove Packing Co. v. Antonio, the court shifted the burden of business necessity to that of “reasoned review,” significantly lowering the employer’s burden.⁷⁰ Congress rejected Wards Cove’s “reasoned review” standard in the Civil Rights Act of 1991, which tried to codify the Griggs standard.⁷¹ Because the Supreme Court has not decided a Title VII disparate impact case since then, it is difficult to predict how the Court will apply the standard.⁷²

In his 2007 article The Evolution of the Disparate Impact Theory of Title VII: A Hypothetical Case Study in the Harvard Journal on Legislation discussing a Clean Shave Policy hypothetical, William Gordon proposed that “it will be more difficult for plaintiffs to establish a prima facie case of disparate impact and easier for an employer to establish job relatedness. It also appears the Court will be more sympathetic to an employer’s business necessity defense [].”⁷³ Gordon’s prediction was proven correct by the 2021 case Bey v. City of New York decided by the Second Circuit, which further contemplated employers’ use of other federal regulations such as OSHA safety standards as a defense to a disparate impact claim and lowered a plaintiff’s chance to prevail under such theory.

II. Clean Shave Policy in Today’s Workplace — A Case Study

A. Bey v. City of New York

In Bey, the court interpreted an OSHA Respiratory Protection Standard (RPS) that prohibits facial hair from “com[ing] between the sealing surface of the [respirator’s] facepiece and the [wearer’s] face” to ensure that the respirator achieves a proper seal.⁷⁴ Firefighters are required to wear a respirator also known as a self-contained breathing apparatus (SCBA) to protect them against toxic atmospheres.⁷⁵

The four plaintiffs were granted accommodation not to be clean-shaven in 2015.⁷⁶ The accommodation was fully applicable for two and a half years and here were no reports that it increased the risks to firefighters or civilians.⁷⁷ In 2018, after a review of the Department’s safety standards initiated by then-FDNY Acting Chief of Safety Joseph Jardin, the medical accommodation was revoked.⁷⁸ The firefighters brought, inter alia, a failure to accommodate claim and a disability discrimination claim under the ADA, and disparate treatment and disparate impact claims under Title VII against their employer.⁷⁹

In the Eastern District of New York, the trial court granted summary judgment for plaintiffs on their failure to accommodate and disability discrimination claims, holding that plaintiffs were disabled within the meaning of the ADA and the accommodation sought would not violate OSHA’s RPS.⁸⁰ The court granted summary judgment for defendants on the disparate treatment claim because “[p]laintiffs have not produced evidence showing that they were similarly situated to the unidentified Caucasian firefighters they allude to.”⁸¹ The court also granted summary judgment for defendants on the disparate impact claim because “[p]laintiffs’ specific factual allegations are at bottom claims for disparate treatment only.”⁸²

Defendants appealed the ADA decision to the Second Circuit.⁸³ Plaintiffs cross-appealed the disparate impact claim decision, but not the disparate treatment claim.⁸⁴ A three-judge panel reversed the trial court’s decision on the ADA claims, holding that the accommodation sought by the plaintiffs was in violation of OSHA’s RPS, and that “it is a defense to liability under the ADA ‘that another [f]ederal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.’”⁸⁵ The circuit court affirmed the district court’s decision on the disparate impact claim, holding that “Title VII cannot be used to require employers to depart from binding federal regulations.”⁸⁶ After the appeal, plaintiffs petitioned for a rehearing en banc, which was denied.⁸⁷

B. Implications of Bey

With millions of workers required to wear a respirator in the workplace,⁸⁸ the Bey decision will have a profound impact on Black men with PFB and other men who need to maintain facial hair for medical or religious reasons when they seek employment opportunities.

1. Holdings of Bey

Bey is the first case to provide a definitive reading of the conflict between OSHA’s RPS and the ADA and/or Title VII. By conclusively prohibiting employers from providing accommodations to employees with PFB under the ADA or Title VII if the employer is subject to the OSHA RPS, the Bey decision will have a profound negative impact on legal efforts to combat clean shave policy discrimination in the workplace.

First, by reversing the district court, the Second Circuit’s opinion in Bey is the first case to interpret the OSHA RPS in such a restrictive way — contrary to prior case law and actual employer practice. The court held that the regulation was “unambiguous” and that the RPS “clearly requires firefighters to be clean shaven where an SCBA seals against the face.”⁸⁹ No prior case law or employer practice has indicated that to comply with the RPS, employees must be completely clean-shaven. The district court in Bey pointed to OSHA’s own interpretive letter dated May 9, 2016: “[f]acial hair is allowed as long as it does not protrude under the respirator seal, or extend far enough to interfere with the device’s valve function.”⁹⁰ The district court noted that firefighters who received the prior accommodation — to maintain closely-cropped facial hair uncut by a razor — all passed the OSHA Fit Test.⁹¹ In Kennedy v. Bowser, plaintiff firefighter was able to pass the District of Columbia Fire Department’s respirator Fit Test with a beard.⁹² In Fitzpatrick v. City of Atlanta, the Eleventh Circuit held that “shadow beards” were encompassed by the prohibitions, but noted that “the OSHA … standards … do not specifically address the case of very short shadow beards,” and that “public employers such as the City are not required by law to comply with OSHA standards.”⁹³

Moreover, in Sughrim v. New York, where correctional officers of New York State Department of Corrections and Community Supervision (DOCCS) challenged their employer’s Clean Shave Policy on religious discrimination grounds, the plaintiffs alleged that the OSHA RPS only requires users be able to achieve a proper seal from the mask as determined by a Fit Test.⁹⁴ Relatedly, DOCCS and the State of New York lost a class action arbitration with the correctional officers’ union in 2016.⁹⁵ The arbitrator found that DOCCS’s designated clean-shaven job posts were not required by OSHA regulations, and that officers with facial hair can work in clean-shaven posts if they can pass a Fit Test.⁹⁶ Bey’s interpretation of the OSHA RPS is the first federal appellate decision holding that the regulation requires employees to be completely clean-shaven, and it will likely be given significant weight by other courts and employers.⁹⁷

Second, after holding that OSHA RPS requires employees to be completely clean-shaven, the Second Circuit went on to decide 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” and that “Title VII cannot be used to require employers to depart from binding federal regulations.”⁹⁸ The court held that compliance with federal safety regulations should be treated as either an undue hardship for the employer or an affirmative defense.⁹⁹

Previously, in Chevron U.S.A. v. Echazabal, the United States Supreme Court held that competing policies of the ADA and OSHA remain “an open question,”¹⁰⁰ but reducing the chances of incurring liability due to OSHA violations was consistent with the employer’s business necessity.¹⁰¹ In other PFB-related clean shave policy cases, even though employers are not bound by OSHA standards, the courts have held that “such standards certainly provide a trustworthy bench mark for assessing safety-based business necessity claims,”¹⁰² and that “protecting employees from workplace hazards is a goal that, as a matter of law, has been found to qualify as an important business goal.”¹⁰³ Even though the burden on employers has increasingly become lighter,¹⁰⁴ merely asserting a business necessity defense would not be sufficient — the employer would still need to “present convincing expert testimony.”¹⁰⁵

In Bey, the Second Circuit went one step further and held that if the accommodation the plaintiff was seeking under the ADA and/or Title VII conflicts with binding federal regulations, it would automatically be considered an undue hardship and the defendant could pass the business necessity analysis without any hurdles.¹⁰⁶ Furthermore, for a failure to accommodate claim under the ADA, the plaintiff might not even be able to establish a prima facie case as the accommodation they seek would not be reasonable.¹⁰⁷

2. The Bey Decision Allows Employers to not Provide Accommodations to Employees with PFB

The impact of Bey could be expansive. Take OSHA regulations as an example. Before Bey, if an employer adheres to a less restrictive interpretation of the OSHA RPS, they could allow employees with PFB to keep a small beard while wearing a respirator if they can pass the Fit Test.¹⁰⁸ According to the Second Circuit, OSHA’s regulation permits employers to prohibit male facial hair altogether,¹⁰⁹ which other federal appellate courts have not ruled as such. OSHA regulations reach an extremely wide array of employers, “cover[ing] most private sector employers and their workers, in addition to some public sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority.”¹¹⁰ New York state law requires that all public employers — like the FDNY — must comply with OSHA regulations.¹¹¹

A 2001 Bureau of Labor Statistics survey found that a total of 3.3 million employees, or about 3% of all private-sector employees, wear respirators on the job.¹¹² In about 10% of all private industry workplaces, half of those that wear respirators are required to do so.¹¹³ Although no similar surveys have been conducted recently, those numbers are likely to increase significantly in the current COVID-19 pandemic.¹¹⁴ OSHA’s Emergency Temporary Standard (ETS) on COVID-19 Testing and Vaccination requires employers to comply with OSHA regulations on face covering and respiratory protection.¹¹⁵ The fact that the ETS is currently being contested in federal courts likely means that employers would face more uncertainty, err on the side of caution, and potentially be more restrictive when implementing such regulations.¹¹⁶ Moreover, the New York Health and Essential Rights Act (NY HERO Act) requires employers to adopt extensive new workplace health and safety protections in response to the COVID-19 pandemic and to protect employees against exposure and disease during a future airborne infectious disease outbreak.¹¹⁷ If a New York employer is trying to implement a new workplace safety regulation in compliance with the OSHA ETS and the NY HERO Act, they can easily defeat a failure to accommodate claim brought by employees with PFB as a result of Bey.

Generally, the Bey decision will likely hinder employer’s diversity, equity, and inclusion efforts nationally. Bey put employers in a bind where they will likely face the choice between violating OSHA rules or undermining the goals of the ADA and Title VII. Because if employers want to adhere to the ADA or Title VII and provide reasonable accommodations, they cannot essentially make that kind of accommodation if they are subject to OSHA rules.

The impact of Bey is also immediate. In Hamilton v. City of New York, a sister case decided three months after Bey, a firefighter challenged the FDNY’s Clean Shave Policy on religious discrimination grounds.¹¹⁸ The court disposed of the plaintiff’s Title VII failure to accommodate claim swiftly, granting summary judgment in favor of the employer.¹¹⁹ The court held that in light of Bey, the OSHA RPS posed an undue hardship and that “[d]efendants easily satisfy their burden.”¹²⁰ The court further explained that Bey applies to ADA accommodations “with equal (if not greater) force” than Title VII religious accommodations.¹²¹ Similarly, in Sughrim, the aforementioned religious discrimination case, the district court ruled that the correctional officers plausibly alleged Title VII disparate treatment and failure to accommodate claims in a motion to dismiss decision.¹²² However, the plaintiffs are unlikely to prevail if the parties return to litigation,¹²³ because New York state law renders DOCCS subject to OSHA in the same manner as the FDNY.¹²⁴

3. The Bey Decision Will Likely Hinder Employers’ Diversity, Equity, and Inclusion Efforts

Specifically, Bey will likely negatively impact the FDNY’s effort to recruit more Black firefighters if the FDNY is allowed to not provide accommodation for a Black firefighter with PFB who wants to serve in active duty. With PFB affecting up to 85% Black men,¹²⁵ the deterring effect might be significant.

The FDNY has long faced allegations of discrimination.¹²⁶ In 2021, out of more than 11,000 FDNY firefighters in New York City — the largest fire department in the nation — 75% of the firefighters are white.¹²⁷ In 2018, only 9% of FDNY firefighters were Black and 13% Hispanic.¹²⁸ The Atlantic even questioned “Why So Few of New York’s Bravest Are Black” in 2015.¹²⁹ In 2011, the FDNY settled a lawsuit that determined the FDNY had discriminated against Black and other minority applicants in its post-9/11 hiring process and was put under the watch of a federal monitor to focus on diversity.¹³⁰ Since the lawsuit, the FDNY has developed several strategies to attempt to diversify firefighters including adding $10 million to support recruiting African American, Hispanic/Latino, Asian, and female candidates.¹³¹ Even though the FDNY has made some progress,¹³² the Bey decision could be a setback, and it reflects “part of a nationwide struggle for African Americans seeking to gain equal access to higher-paying civil-service jobs.”¹³³

Generally, the Bey decision will likely hinder employer’s diversity, equity, and inclusion efforts nationally. Bey put employers in a bind where they will likely face the choice between violating OSHA rules or undermining the goals of the ADA and Title VII. Because if employers want to adhere to the ADA or Title VII and provide reasonable accommodations, they cannot essentially make that kind of accommodation if they are subject to OSHA rules.

III. Policy Recommendations In Light Of Bey

In light of Bey, if a job requires an employee to wear a respirator and the employer is subject to OSHA regulations, the employee is required to be completely clean-shaven and the employer is unlikely to be able to provide any accommodation under the ADA if the employee suffers from PFB.¹³⁴ More broadly, the holding in Bey provides that accommodations under the ADA and Title VII should give way to any binding federal regulations.¹³⁵ Because millions of employees are required to wear a respirator at work,¹³⁶ and with PFB disproportionately impacting Black men,¹³⁷ Bey may result in the exclusion of Black men with PFB from the workforce or impact how they can effectively perform their jobs.

The parties to the case probably did not expect the restrictive ruling in Bey.¹³⁸ The Second Circuit noted that the plaintiffs tried to establish that the FDNY’s clean shave policy was narrower than the OSHA RPS, which would in fact allow a short goatee.¹³⁹ However because the plaintiffs based their claims on the OSHA RPS rather than the FDNY policy and only raised this argument on appeal, the court declined to consider it,¹⁴⁰ instead issuing a restrictive reading on the OSHA RPS.

As a result, for Black employees with PFB hoping to challenge an employer’s clean shave policy, litigation seems to be ineffective. Given the challenges of establishing an ADA or a Title VII claim,¹⁴¹ the likelihood of success in litigation is low, especially with other binding federal regulations, such as OSHA, at play. The unpredictability of how a court would interpret certain rules or regulations could also lead to an unexpectedly restrictive decision like Bey, which would end up creating further setbacks to the mission of seeking equality for employees.

Administrative agency and legislative efforts could also help with the inequitable results of clean shave policy discrimination in the workplace. But such solutions would likely move more slowly and may be less efficient than employer initiatives and litigation. In Bey, the Second Circuit suggested that if the firefighters continue to believe that the OSHA RPS is unduly restrictive, they should direct their challenge to OSHA.¹⁴² On the legislative front, Congress could clarify their intent and try to ensure the courts faithfully apply the antidiscrimination laws Congress passes, as they did with the Civil Rights Act of 1991¹⁴³ and the ADAAA.¹⁴⁴

This Paper proposes that employers should design more equitable clean shave policy and grooming policy in the workplace; as a driving force for social change, courts should take a deeper dive into pretext and take an intersectional approach towards grooming policy cases; and policy makers such as legislators of the CROWN Acts should reevaluate their approach in light of Bey and also advocate more for Black men.

A. Employers Should Design Better Grooming Policies in the Workplace

Ultimately it is employers who will be enforcing these workplace policies. Addressing the conflict between the OSHA RPS and employees with PFB, OSHA clarified that it is up to the employer to select which type of respirator to use, “[b]ecause OSHA’s standard does not necessarily require this type of respirator.”¹⁴⁵ The City of Houston Police Department (HPD) is an example of an employer taking the initiative to update its Grooming Policy in response to concerns about implicit bias.¹⁴⁶ After African American officers with PFB sued the HPD and challenged its Grooming Policy, Chief of Police Harold Hurtt created a committee to “study and address the concerns raised by uniformed officers,” and to identify possible “accommodations.”¹⁴⁷ Under recommendations of the committee, Chief Hurtt revised the HPD’s Grooming Policy to issue “escape hood respirators” to officers affected by PFB.¹⁴⁸

In general, it is recommended that employers consult diversity experts to redesign facially neutral Grooming Policies that might actually be discriminatory, hire a more diverse group of employees — especially in decision-making positions¹⁴⁹ — and further educate themselves about Hair Discrimination.¹⁵⁰ One example is the Halo Code in the United Kingdom.¹⁵¹ The Halo Collective is an alliance working to create a future without Hair Discrimination.¹⁵² The Collective introduced the Halo Code which provides a set of voluntary guidelines for professional establishments to adopt and educate their workforce about Black hair.¹⁵³

Employers should be mindful of the bind created by Bey and design better grooming policies in the workplace to advance the goals of the ADA and Title VII without violating federal safety regulations.

B. Courts Should Not Overlook Pretext and Should Take an Intersectional Approach Towards Clean Shave Policy Discrimination Cases

Courts should not overlook pretext and need to revisit evidentiary framework in discrimination cases.

The trial court in Bey granted summary judgment for defendants on the disparate treatment claim because “[p]laintiffs have not produced evidence showing that they were similarly situated to the unidentified Caucasian firefighters they allude to.”¹⁵⁴ Courts usually grant deference to employers’ undue hardship or business necessity defenses. With Bey, the Second Circuit has made it easier for employers to use federal safety regulations such as OSHA rules as affirmative defense as well. Professor Greene’s article Title VII: What’s Hair (and Other Race-Based haracteristics) Got to Do with It? ¹⁵⁵ provides great insight as to how courts should revisit the evidentiary framework in discrimination cases and not to overlook pretext. For example, the fact that the FDNY firefighters were able to perform their jobs successfully for years without being clean-shaven, and that FDNY revoked the accommodation without further explanation, are strong indicators of pretext, and Bey should probably not be disposed in a summary judgment motion.

Bey, along with Hamilton and Sughrim, also presents an intersectional issue of disability, race, and religion. Intersectionality considers how the intersection of multiple identity categories can create unique inequities among marginalized communities.¹⁵⁶ The EEOC has offered guidance on how to take an intersectional approach to Title VII compliance:

Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex) … The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute — e.g., race and disability, or race and age.¹⁵⁷

PFB-related Clean Shave Policy Discrimination, just like Hair Discrimination, is a manifestation of racism: it affects Black people psychologically, and limits their access to money, capital, and generational wealth.¹⁵⁸ PFB is also a disability.¹⁵⁹ Courts have already recognized the distinct stereotypes to which Black males are subject in intersectional discrimination cases.¹⁶⁰ As courts move forward with precedent-setting intersectional discrimination cases,¹⁶¹ they should start considering Clean Shave Policy Discrimination’s intersectional impact on disability and race. Professor Greene’s discussion on cases involving Muslim women’s hijabs and Black women’s hairstyles are also informative in this context.¹⁶²

C. Policymakers Should Reevaluate Their Approach in light of Bey

The aforementioned CROWN Act¹⁶³ has enjoyed great success, both in the legislature and in raising awareness about hair discrimination. Twenty states and more than 40 municipalities have enacted their versions of the CROWN Act.¹⁶⁴ In March 2022, the U.S. Congress passed the federal version of the CROWN Act in a 235–189 vote.¹⁶⁵ The bill did not pass the U.S. Senate and will heed to be reintroduced during the 2023 legislation session.¹⁶⁶

Similar to clean shave policy discrimination cases, health and safety is a defense often raised by employers in grooming policy discrimination cases in general. After Bey, policy makers such as legislators of different versions of CROWN Act should probably reevaluate their approach. For example, Nebraska’s version of CROWN Act lays out the framework for employers with health and safety concerns while regulating “characteristics associated with race” such as Black hairstyles.¹⁶⁷ Policy makers should be mindful of courts issuing restrictive interpretations of laws or rules outside the legislative framework, like the Second Circuit did in Bey.

In addition, the CROWN Act movement seems to have a focus on grooming policy discrimination experienced by Black women and girls, as evidenced by its research projects commissioned by Dove — a co-founder of the CROWN Coalition,¹⁶⁸ its legislative framework,¹⁶⁹ and its media coverage.¹⁷⁰ The CROWN Act could also act as a platform to raise awareness and gain legislative support for Black male employees experiencing clean shave policy discrimination due to PFB.

Conclusion

With the erosion of the disparate impact doctrine, it has become increasingly arduous for Black plaintiffs with PFB to challenge an employer’s Clean Shave Policy under Title VII. Since the Bey decision, the challenge has become even greater when other binding federal regulations are at play. As collective understanding of grooming policy discrimination and race progresses, Black FDNY firefighters suffering from PFB deserve reasonable accommodation under the ADA. Additionally, it should be recognized that such clean shave policies have a disparate impact on Black male employees in today’s workplace. Employers should take the lead in designing more equitable grooming policies, courts should adopt a revised evidentiary framework and a more intersectional approach towards hair discrimination cases, and legislative efforts such as the CROWN Act should include Black men in their advocacy.