After researching the issue for some time, the Houston Police Department selected the Scott Promask 40 respirator for all patrol officers. Once it was decided that bearded officers could not use the mask, the Department revised its grooming policy to prohibit beards on any uniformed officer, regardless of his medical condition. Under the revised policy, if a uniformed officer is unable to shave, for medical reasons, he is transferred to a plainclothes assignment in another division.
The Police Chief eventually modified the policy to allow bearded officers to remain in uniform, so long as “it is determined by the officer’s attending physician and the City Medical Director that the condition interfering with the respirator seal is permanent.” Under the modified policy, officers with medical conditions are issued “escape hood respirators” instead of the Scott Promask 40. Those officers utilizing an escape hood respirator, however, are precluded from assignments in four divisions: SWAT, Special Response Group, Crime Scene Unit, and the “Calls for Service Loop in Patrol” Unit.
A group of African-American police officers sued the City, contending that both rules amount to racial and disability discrimination. The officers all suffered from a condition known as Ti, a condition that causes severe skin inflammation after shaving, and that disproportionately afflicts African-American men.
A federal court dismissed the lawsuit. The Court observed that a plaintiff in a civil rights lawsuit “is required to demonstrate intentional discrimination; mere disparate impact will not suffice. The officers do not dispute that the no-beards policy is facially neutral, and they have presented no evidence to show that the complained-of policy has been applied differently to them on the basis of race. While the officers do contend that the City did not similarly penalize those officers who have ‘other conditions that equally affect the use of the mask,’ they have not identified or offered proof of any such officers who were reportedly not penalized. Furthermore, in each of their depositions, the officers concede that they have no evidence that the City intended to discriminate against them by implementing the grooming policy at issue.
“The officers argue that the official policy is discriminatory in nature, and has a disparate impact on them. But, again, only intentional discrimination is actionable under Section 1981 of the Civil Rights Act; mere disparate impact will not suffice. Because the officers challenge only the effect of the grooming policy, and have not shown that they were subjected to intentional discrimination, they have failed to state an actionable claim under Section 1981.”
The Court also dismissed the officers’ claim for disability discrimination. The Court recited the general rule that, to be protected by either the Americans with Disabilities Act or the Rehabilitation Act of 1973, an employee must show that his or her physical or emotional impairment substantially limits one or more major life activities. It was this burden of proof, the Court concluded, that the officers did not meet:
“The officers present no evidence to support their claims. The officers do not argue that pseudofolliculitis barbae limits their ability to work generally. In fact, they concede the fact that they are still employed as police officers with the City of Houston Police Department. The officers claim only that their pseudofolliculitis barbae substantially limits their ability to engage in the major life activity of working in all departments as a result of the City’s no-beards policy. But the ability to work in any one particular department within the City of Houston is not a major life activity.”
Though the Court found that the officers had failed to properly lodge a claim under Title VII of the Civil Rights Act, it nonetheless addressed the merits of whether the no-beards policy violated Title VII. Under Title VII, because the no-beards policy had a disparate impact on a protected class (African-American men), the City was required to justify the policy by grounding the policy in a business necessity. The Court found that the City’s policy was in fact justified by such a business necessity:
“The record is undisputed that, in the event of a chemical, biological, radiological, or nuclear attack, Houston’s police officers serving as first responders are expected to set up perimeters, and to assist with the evacuation of the wounded, all while remaining outside of any contaminated zones. Officers that are caught inside a contaminated zone are required to don respirators and retreat from the area. The City has presented expert testimony to show that the Scott Promask 40 cannot be used effectively by bearded officers. The City has also pointed to similar findings by OSHA, NIOSH, and ANSI. On this undisputed record, then, the City has shown that the challenged grooming policy is a legitimate, necessary policy designed to protect those officers in the four divisions most likely to serve as first responders.”
Stewart v. City of Houston, 2009 WL 2849728 (S.D. Tex. 2009).
This article appears in the January 2010 issue