MASKS, FACIAL HAIR, QUAL STANDARDS, AND AFRICAN-AMERICAN EMPLOYEES
EEOC just issued a new decision involving African-American employees and qualification standards. It is a familiar story about the difficulty those employees often have when required to be clean shaven in case a need arises to wear tight seal face masks, e.g., Pseudofolliculitis Barbae. The agency removed ten of them from their police officer positions in 2010 because of their inability to shave close enough to meet the agency qual standard. They filed a discrimination complaint, forcing EEOC to address the conditions under which it will find a qual standard discriminatory.
In cases involving qual standards “the Agency must establish that: 1) the standard is ‘job-related and consistent with business necessity;’ and 2) there is no accommodation that would enable the Complainants to meet the existing standard or no alternative approach (itself a form of accommodation) through which the employer can determine whether the person can perform the essential function involved….When determining if a qualification standard is job-related and consistent with business necessity, the central question is whether the standard is “carefully tailored to measure [an individual’s or individuals’] actual ability to [perform] the essential function of the job.’”
Based on the evidence of record, EEOC concluded the Agency established that the ability to wear a respirator mask by its Police Officers is job-related and consistent with business necessity. As first responders, wearing a mask that works properly is an essential function of their position, and the issue is not the frequency in which Officers wear the mask but the ability to wear it properly in an emergency, when needed. The question to be determined, however, is whether Officers whose disability impacts their ability to be completely clean shaven can be provided with an accommodation such as a waiver of the rule to permit closely cropped facial hair like the ¼ inch they were previously permitted or the provision of another type of respirator that is not impacted by facial hair?
The agency argued that the OSHA standard supported its position that accommodations were not acceptable, e.g., even a small amount of leakage could be devastating.
EEOC responded that “In order to exclude an individual with a disability based on the possibility of future injury, the Agency must prove through evidence that there is a significant risk of substantial harm. A speculative or remote risk is insufficient, and the Agency must show more than that an individual with a disability stands some slightly increased risk of harm… The general conclusory statements by the Agency as to a potential risk of a mask seal failure in an emergency for Officers with closely cropped facial hair are without adequate evidentiary support despite its opportunity to collect such evidence during the supplemental investigation.”
Moreover, it noted that “the record shows that OSHA’s regulation 29 C.F.R. § 1910.134 contemplates providing Powered Air-Purifying Respirators to those who cannot use a negative pressure mask due to a medical condition.”
EEOC reinstated the officers to their positions along with back pay and any benefits they may have missed.
Given that masks of all kinds are a reality in our future, union reps should remember there is good case law like this one that they can use when a local problem arises. Check out Cleveland C., et al., v. Lloyd J. Austin III, Sec’tary, Dep’t of Defense, EEOC Nos. 2020003894 thru 2020003903 (2021)
