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Developments at the EEOC: P&K Wins Reasonable Accommodation Case

Developments at the EEOC:  On September 26, 2018, the Equal Employment Opportunity Commission's Office of Federal Operations issued its decision in Cleveland C. et al. v. Dept. of Defense, EEOC Appeal Nos. 0120170405-0120170414.  Shifting from prior precedent, the EEOC recognized reasonable accommodation protections for persons suffering from pseudofolliculitis barbae (PB).

PB affects clean-shaven skin in some persons with curly hair, chiefly raising problems for some African-American men.  The best treatment for PB sufferers concerning facial hair is keeping a short beard.  PB sufferers often faced adverse actions due to workplace appearance policies or safety rules prohibiting facial hair.  Before the 2008 ADA Amendments Act (ADAAA), PB suffers could not seek relief through reasonable accommodation requests for their disability; race discrimination claims had failed in court.  Before Cleveland C., there had been no EEOC decisions concerning PB and disability discrimination under the ADAAA.

Complainants worked for the Pentagon Force Protection Agency (PFPA). After years of allowing medical waivers to PFPA's no-facial hair policy, PFPA stopped granting waivers, claiming Complainants could not use respirators with a beard, no matter how short.  However, Complainants had never needed to wear a respirator in an emergency, and had all passed standard respirator fit tests with short beards.  PFPA ignored OSHA regulations requiring  alternate respirators for PB sufferers.  Complainants requested reasonable accommodation consistent with the OSHA regulations, but PFPA denied reasonable accommodation without individualized assessment.

While OFO's Cleveland C. decision makes no final determination on the issue of unlawful denial of reasonable accommodation, it includes several important holdings:

• PB is a disability under the ADAAA;

• PFPA wrongly found Complainants were a direct threat to themselves or others, and incorrectly applied a blanket policy banning facial hair without individualized assessment; and

• PFPA used the wrong analysis to find Complainants not "qualified" for their positions.

OFO ordered PFPA to conduct a remand investigation on:

• Whether PFPA's shaving policy is genuinely related to Complainants' ability to perform the essential functions of their positions, including how frequently Complainants were required to don a facemask, how often respirators failed to seal due to facial hair, and whether Complainants passed respirator fit tests with facial hair.

• The feasibility of reasonably accommodating Complainants by creating an exception to PFPA policy to allow a small degree of facial hair if the respirators can still form an adequate seal; and

• The feasibility of accommodating Complainants using alternative respirators.

Complainant was represented by P&K Founding Principal Joseph V. Kaplan and P&K Principal Johnathan P. Lloyd.

If you are a federal employee with a discrimination complaint, and wish to discuss your rights, please consider contacting Passman & Kaplan, P.C. to request an initial consultation.

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