Firefighter Loses ADA Case Because Discrimination Occurred Before Change In Law

Manu Kennedy, a former District of Columbia firefighter, refused to comply with a policy requiring firefighters to be clean-shaven so that they can safely wear their respirators. Kennedy has pseudofolliculitis barbae (PFB), a skin condition that disproportionately affects African-American men and can lead to irritation and infection when shaving one’s face closely.

Kennedy’s dermatologist recommended he maintain a one-eighth-inch beard to prevent irritation, but the Department did not consider PFB a disability and refused to accommodate it. Instead, the Department assigned Kennedy to conduct fire inspections until he ultimately resigned in May 2013.

Kennedy sued the District for, among other things, a violation of the Americans With Disabilities Act (ADA). He was immediately confronted with the convoluted history of the definition of “disability” under the ADA.

When the ADA was first passed, Congress intended it to be an expansive law. The preface to the ADA stated that the law was intended to cover 36 million Americans. Very quickly, a 5-4 majority on the Supreme Court began issuing ADA decisions that deeply cut into the law, to the point where virtually all ADA claims were unsuccessful.

Beginning in 2002, the Supreme Court narrowly interpreted what constituted a disability under the ADA, focusing often on the ADA’s requirement that to be disabled, an employee must be substantially limited in one or more major life activity. The Court’s decisions started with Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999), where the Court held that “to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job.” The Court then held that an employee “must allege he is ‘significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes,’ meaning that one ‘must be precluded from more than one type of job, a specialized job, or a particular job of choice.’ Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).” The Supreme Court strictly interpreted the ADA’s “substantially limits” language “to create a demanding standard for qualifying as disabled” that required the impairment to “prevent or severely restrict the individual” from engaging in a major life activity and be “permanent or long term.”

In response to these narrow interpretations, Congress passed the ADA Amendments Act of 2008 (ADAAA). The ADAAA reinstated a broad scope of protection to be available under the ADA and rejected the standards enunciated by the Supreme Court. The ADA, as amended, instructs courts to construe the “definition of disability in favor of broad coverage.” New regulations issued pursuant to the ADAAA similarly provide that “the term ‘substantially limits’ is not meant to be a demanding standard.”

There was no question that had his case been decided under the ADAAA, Kennedy would have had a viable claim. However, the ADAAA did not become effective until January 1, 2009, and it does not have retroactive effect. Because Kennedy requested an accommodation for his PFB on July 10, 2008, the Court found that his case had to be decided under the pre-ADAAA version of the ADA.

That meant Kennedy lost his lawsuit because he could not show that his PFB disqualified him from what Sutton referred to as a “class of jobs.” The Court found that “although Kennedy may not be able to perform his ‘particular job of choice’ as a firefighter, he can still serve in fire prevention jobs generally. The D.C. Circuit has not addressed the particular issue of whether firefighting or public safety jobs requiring respirators constitute a ‘class of jobs’ under the pre-amendment ADA, or whether PFB substantially limits individuals in the public safety field from the major life activity of working. Significant pre-amendment authority in other circuits, however, contradicts Kennedy’s position, and holds that ‘firefighting jobs’ is too narrow a field to describe a ‘class of jobs.’”

Kennedy v. Gray, 2015 WL 1283541 (D. D.C. 2015).