Employment Law Daily Black officer with skin condition can’t show no-beard policy had disparate impact, but his ADA claims advance
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Monday, February 5, 2018

Black officer with skin condition can’t show no-beard policy had disparate impact, but his ADA claims advance

By Kathleen Kapusta, J.D.

An African-American police officer with Pseudofolliculitis Barbae (PFB), a medical condition aggravated by shaving that predominantly affects black men, could not show his employer’s directive that officers be clean shaven had a disparate impact based on race, a federal district court in Pennsylvania ruled, granting summary judgment against his Title VII claim. While his ADA disability discrimination, retaliation, and hostile work environment claims all advanced, his failure-to-accommodate claim failed as he did not explain how his employer should have known he sought relief from the directive’s requirement to provide regular medical certification where he expressly asked to be relieved from shaving. And while his FMLA retaliation claim survived summary judgment, his FMLA interference claim did not (Lewis v. University of Pennsylvania, January 29, 2018, Pratter, G.).

Seven years after he began working for Penn Police, the officer was assigned to Special-Beat 40, a good shift with favorable hours and a regular schedule. Although Penn Police’s Directive 45 required officers to be clean shaven, it allowed for medical waivers under certain circumstances and required an officer with a beard for medical reasons to present an updated medical certificate every 60 days and keep facial hair trimmed to 1/4 inch in length.

What are you, Taliban? In August 2015, the officer requested a waiver of the shaving requirement. Although two other African-American officers had requested waivers in the past, they stopped seeking the waiver due to harassment and the onerous requirement to update the medical certificate every 60 days. Beginning in January 2016, the officer’s supervisors allegedly began pressuring him to shave, checked his facial hair daily, and began subjecting him to uniform inspections. Further, he claimed, after they made his medical condition common knowledge, another officer approached him and said “What are you, Taliban now? You don’t have that condition, why don’t you shave?” In addition, his patrol car was purportedly taken away, he did not receive requested overtime assignments, and he lost field training assignments he had previously been given.

Accommodation request. Also in January, he requested as an accommodation that he not shave his face or neck. His request was signed by his dermatologist who affirmed that his skin condition was permanent and stated that if he was clean shaven, he risked infection if he had contact with the public. Construing this as a request to avoid contact with the public, Penn Police denied it. The next day, the officer complained to a captain that his commanders mistreated him in connection with his beard and skin condition but the captain accused him of lying.

Take his gun. In February, after a pre-disciplinary hearing in which the superintendent told him a beard was unprofessional, he received a written warning for various policy violations. He was also reassigned to a regular shift because he “was no longer invested” in SB-40, and was put on “sick abuse status.” Two weeks later, he requested FMLA leave for anxiety. Later that day, he was called into a meeting with the superintendent who purportedly stated “I’m tired of this, take his gun.” He was then marched out of the station in front of everyone. Although he interpreted this to mean he was terminated, Penn Police continued to pay him while it processed his FMLA request. That same month, he informed Penn Police he would not return.

Disparate impact. Addressing the officer’s Title VII disparate impact claim, the court first noted that while the Third Circuit has not ruled on the issue of whether they can be brought based on employment conditions as opposed to hiring practices or employment opportunities, other appeals courts have allowed such claims, and the statutory language itself does not limit disparate impact cases to only those involving hiring or promotions. Thus, it found that disparate impact claims can apply to employment conditions as well as hiring practices.

Turning to the officer’s assertion that there was no real dispute that PFB disproportionately affects African-American men and thus having to continuously provide medical certifications is an employment practice that disproportionately burdens black men (especially as two other officers with the same condition quit seeking a waiver because of the onerous requirement and harassment), the court found he failed to show the policy had a disparate impact based on race.

Not only was there no information showing there were not skin conditions affecting white men that would be exacerbated by shaving, he did not show the burden caused by the policy was significant as the other officers cited harassment or fear of harassment for having a beard as a reason they stopped seeking the waiver. Harassment was not part of the facially neutral policy, observed the court, so any burden caused by it could not be considered in assessing whether the policy itself led to a significant burden that disproportionately weighed on African-American men. Although summary judgment was granted on this claim, the officer’s disparate treatment claim advanced as Penn Police failed to address it.

Failure to accommodate. Disposing of the employee’s ADA failure-to-accommodate claim, the court noted that Penn Police construed his request as a request not to have physical contact with people under arrest, which it believed was patently unreasonable. Although the officer argued that he was merely explaining the risks he would face if he had to shave, he pointed to no evidence that he was seeking relief from providing a new certificate every 60 days and he did not explain how Penn Police should have known that’s what he was seeking when he asked to be relieved from shaving.

ADA discrimination. Turning to the officer’s ADA disability discrimination claim, the court first found a reasonable jury could conclude Penn Police took the alleged multiple adverse actions—the transfer, written warning, policy violation claims, uniform inspections, placement on paid leave—against him for discriminatory reasons and, when viewed in the aggregate, that they affected the terms and conditions of his employment. Further, Penn Police only began disciplining him after he grew a beard and requested a waiver from shaving. Moreover, he found the actions so distressing that he requested a leave of absence from work. Additionally, the actions were linked to his disability by the superintendent’s comment that: “Here’s the deal. He had facial hair that I observed, which started off this whole disciplinary process, right.” Thus he established his prima facie case.

ADA retaliation. Likewise, he established a prima facie case of ADA retaliation, said the court, noting that he detailed nine retaliatory employment actions that, when viewed together, could qualify as an adverse employment action. Further, under the broader definition for retaliation claims, he suffered an adverse action when he was transferred and when he was placed on paid leave.

Pretext. And while Penn Police offered legitimate nondiscriminatory reasons for its actions—policy violations, failure to submit the waiver, not invested in SB-40—there was also evidence of pretext. Here, said the court, given the superintendent’s statement that the employee’s beard sparked the subsequent investigations, coupled with the fact that all of the alleged adverse events occurred within four months of when the officer requested an accommodation from shaving and just two weeks after he complained about harassment, a reasonable jury could conclude that the actions were discriminatory and retaliatory in nature. Thus these claims could proceed to trial.

FMLA interference and retaliation. Not so as to his FMLA interference claim, however, as he was never denied FMLA leave. Rather, he resigned before his request was processed. Observing, however, that its FMLA retaliation analysis paralleled that of the ADA retaliation claim, the court found a reasonable jury could conclude that the meeting where he was placed on leave and escorted out of the station was an adverse employment action for purposes of his prima facie case. The fact that he was escorted from the station on the same day he updated his request for FMLA leave was suggestive enough to defeat summary judgment for the prima facie case. As for pretext, the court found it “inescapably suggestive” that Penn Police took its allegedly retaliatory action against the officer the same day he submitted his request for FMLA leave. Thus, a reasonably jury could conclude that Penn Police placed him on paid leave as retaliation for his FMLA leave.

ADA hostile work environment. Turning to his ADA hostile work environment claim, the court found that looking at the officer’s overall experience, a reasonable jury could conclude the alleged conduct was actionably pervasive. Between January and March 2016, he was repeatedly pressured to shave by his superiors, endured derogatory comments about his beard (at least one of which he complained about), was subjected to additional uniform checks, was denied overtime assignments, was given written warnings, had his driver’s license scrutinized, had his patrol car taken away, was placed on sick abuse status, had two disciplinary meetings, and was placed on paid leave. Further, the superintendent was on record as saying that all of these disciplinary actions started because of his beard. Thus, this claim also advanced.

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