Fitzpatrick v. City of Atlanta

This suit was brought against the City of Atlanta ("the City") by several African-American firefighters employed by the Atlanta Department of Public Safety, Bureau of Fire Services ("the Fire Department") who suffer from a medical condition on account of which they cannot shave their faces. Plaintiffs challenge a fire department regulation that requires all firefighters to be clean-shaven. They allege (1) that this "no-beard" rule has a discriminatory disparate impact on African-Americans in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq.; (2) that the no-beard rule was adopted for racially discriminatory reasons in violation of Title VII; (3) that the rule discriminates against the handicapped in violation of Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794(a); and (4) that the rule infringes the firefighters' constitutional right to substantive due process of law.1 The City defends the policy, contending that the respirator masks used by firefighters cannot safely be worn by bearded men. The district court granted summary judgment for the City and the firefighters have appealed. For the reasons set forth below, we affirm the judgment of the district court.

In order to breathe in smoke-filled environments, firefighters must wear respirators, otherwise known as positive pressure self-contained breathing apparatuses ("SCBA's"). For the SCBA mask to operate properly and safely, its edges must be able to seal securely to the wearer's face. The parties do not dispute that a wearer's long facial hair can interfere with the forming of a proper seal. In an attempt to address the hazard posed by such hair, the City Fire Department until 1982 enforced a policy requiring all male firefighters to be completely clean-shaven. See Bureau of Fire Services Standard Operating Procedure 88.9.

The twelve plaintiff-appellant firefighters in this case are all African-American men who suffer from pseudofolliculitis barbae ("PFB"), a bacterial disorder which causes men's faces to become infected if they shave them. It is generally recognized that PFB disproportionately afflicts African-American men. At least one of the appellants, firefighter Darryl Levette, has been fighting with the City over its no-beard policy for more than ten years. Levette first challenged the requirement in 1982. In response to his complaints, the City modified its policy in order to accommodate firefighters with PFB. See Bureau of Fire Services Standard Operating Procedure 82.5 (R-31-Exhib. 1, Attach. B).

Under the modified policy, firefighters with PFB were permitted to participate in a program known as the "shaving clinic." Shaving clinic participants were allowed to wear very short "shadow" beards, which were not to exceed length limits specified by a dermatologist employed by the City. To enforce these limits, the Fire Department subjected the participating firefighters to a series of periodic beard inspections. It was believed that so long as the shadow beards were kept very short, the SCBA masks would still be able to seal sufficiently well to enable the firefighters to use them safely.

In 1988, after one of the appellant firefighters, William Hutchinson, complained that he had been wrongly refused permission to participate in the shaving clinic, the City decided to reconsider the shadow beard policy. On the recommendation of Del Corbin, the City's then-Assistant Commissioner of Public Safety, the Fire Department decided that shadow beards would no longer be permitted, on the grounds that even shadow beards may interfere with the safe use of SCBA's.

On November 4, 1988, the Department of Public Safety issued Special Order 3.9, directing the Fire Department to resume enforcement of Bureau of Fire Services Standard Operating Procedure 88.9, the no-beard rule. Under the new policy, firefighters who cannot be clean-shaven must be removed from firefighting duty. Such persons may be transferred to non-firefighting positions within the Department, if suitable openings are available. They may also apply for other available positions with the City but are accorded no special priority and must compete on an equal basis with other eligible candidates. Under the new policy such persons are granted the right to be temporarily reassigned from firefighting duties for a one-time period of ninety days. Dep't of Pub. Safety, Special Order 3.9 (R-33-Exhib. A). Male firefighters who cannot shave and for whom non-firefighting positions are not available within the Department are terminated, once they have exhausted their ninety days of temporary reassignment.

Firefighter Hutchinson challenged the new policy by filing a charge with the U.S. Equal Employment Opportunity Commission ("EEOC") on December 14, 1988. In March 1989, the EEOC certified the charge as a "class" charge on behalf of all city firefighters adversely affected by the policy change. Magistrate's Report (R-43-2-3). The appellant firefighters initiated this suit on December 29, 1989. The district court issued and then extended a restraining order prohibiting the City from changing the terms or conditions of the plaintiff firefighters' employment during the pendency of the litigation before the district court. (R-3; R-42). The City has kept the appellant firefighters on the payroll and has permitted them to continue reporting for work at their regular fire stations, but it has required them to perform various janitorial duties instead of their regular jobs. Magistrate's Report (R-43-2-5).

The City answered the complaint and moved for summary judgment. The district court referred that motion to a magistrate judge and on November 18, 1991, adopted the magistrate's recommendation that the motion be granted. District Court Order (R-53), adopting Magistrate's Report (R-43). This appeal followed.

Under Fed.R.Civ.P. 56(c), a moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The district court should resolve all reasonable doubts about the facts in favor of the non-movant, and draw all justifiable inferences in his [or her] favor." U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal quotation marks and citations omitted).

In Adickes v. Kress, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Supreme Court instructed the federal courts to employ a two-part framework of shifting burdens to determine whether, as regards a given material fact, there exists a genuine issue precluding summary judgment. The operation of this framework was modified significantly in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The current framework is set out below.

The movant's initial burden consists of a "responsibility [to] inform[ ] the ... court of the basis for its motion and [to] identify[ ] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. at 2553. The nature of this responsibility varies, however, depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or the non-movant would bear the burden of proof at trial.

1. For Issues on Which Movant Would Bear Burden of Proof at Trial

As interpreted by this court sitting en banc, Celotex requires that for issues on which the movant would bear the burden of proof at trial,

that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.

Four Parcels, 941 F.2d at 1438 (citations and internal quotation marks omitted; emphasis in original).

2. For Issues on Which Non-Movant Would Bear Burden of Proof at Trial

For issues, however, on which the non-movant would bear the burden of proof at trial,

the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim in order to discharge this initial responsibility. Instead, the moving party simply may show[ ]--that is, point[ ] out to the district court--that there is an absence of evidence to support the non-moving party's case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial.

Four Parcels, 941 F.2d at 1437-38 (citations, footnote, and internal quotation marks omitted; emphasis in original).2

C. Non-Movant's Responsibility Once Movant Satisfies Initial Burden

If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made. Coats & Clark, 929 F.2d at 608. If, however, the movant carries the initial summary judgment burden in one of the ways discussed above, responsibility then devolves upon the non-movant to show the existence of a genuine issue as to the material fact.3

1. For Issues on Which Movant Would Bear Burden of Proof at Trial

For issues on which the movant would bear the burden of proof at trial, the non-movant, in order to avoid summary judgment, must come forward with evidence sufficient to call into question the inference created by the movant's evidence on the particular material fact. Only if after introduction of the non-movant's evidence, the combined body of evidence presented by the two parties relevant to the material fact is still such that the movant would be entitled to a directed verdict at trial--that is, such that no reasonable jury could find for the non-movant--should the movant be permitted to prevail without a full trial on the issues. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.

2. For Issues on Which Non-Movant Would Bear Burden of Proof at Trial

For issues on which the non-movant would bear the burden of proof at trial, the means of rebuttal available to the non-movant vary depending on whether the movant put on evidence affirmatively negating the material fact or instead demonstrated an absence of evidence on the issue. Where the movant did the former, then the non-movant must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated. Where the movant did the latter, the non-movant must respond in one of two ways. First, he or she may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was "overlooked or ignored" by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence. Celotex, 477 U.S. at 332, 106 S.Ct. at 2557 (Brennan, J., dissenting). Second, he or she may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. See Melissa L. Nelkin, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 Hastings L.J. 53, 82-83 (1988).

The court of appeals reviews grants of summary judgment de novo, applying the same legal standard employed by the district court in the first instance. Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990). When reviewing a grant of summary judgment, the court of appeals may affirm if there exists any adequate ground for doing so, regardless of whether it is the one on which the district court relied. Davis v. Liberty Mutual Ins. Co., 525 F.2d 1204, 1207 (5th Cir.1976)4; 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil Sec. 2716, at 658 (1983).

The district court granted summary judgment for the City on each of the firefighters' four claims. On appeal the firefighters challenge those rulings. As explained below, we affirm the judgment of the district court on all four claims.

Title VII of the Civil Rights Act of 1964 prohibits employers covered by the statute from taking actions or engaging in practices that discriminate against workers or job applicants on the basis of their race, color, religion, sex, or national origin. 42 U.S.C. Sec. 2000e-2. This ban on employment discrimination extends, not just to actions taken or practices instituted for discriminatory reasons, but also to otherwise nondiscriminatory actions or practices that have discriminatory effects. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). In order to establish Title VII liability under this effects-based definition of discrimination, a plaintiff must first demonstrate that a challenged employment action or practice has a disproportionate adverse impact on a category of persons protected by the statute. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977). Once such a prima facie case has been made out, the defendant must show that the challenged action is demonstrably necessary to meeting a goal of a sort that, as a matter of law, qualifies as an important business goal for Title VII purposes.

The Supreme Court held in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), that the defendant's burden on the "business necessity" defense is only one of production; under Wards Cove the burden of persuasion remains at all times with the plaintiff. Id. at 659, 109 S.Ct. at 2126. Congress, however, statutorily reversed this ruling in the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, which amended Title VII to provide that, once a plaintiff makes out a prima facie case, the full burden of proof shifts to the defendant who must demonstrate business necessity in order to avoid liability. Id. Sec. 105(a), 105 Stat. at 1074-75 (codified at 42 U.S.C. Secs. 2000e-2(k)(1)(A)).5 In this case the district court entered summary judgment on November 21, 1991, one day before the President signed the 1991 Civil Rights Act into law. We shall assume arguendo that the burden allocation set out in the new statute applies retroactively to this case, for we conclude that defendant is entitled to summary judgment even under the 1991 Civil Rights Act standard--that is, the standard most favorable for plaintiffs. See infra Part IV.A.3.

Upon a showing of "business necessity," the challenged action or practice is deemed justifiable, its regrettable discriminatory effects notwithstanding. However, even after such a showing, the plaintiff may still overcome a proffered business necessity defense by demonstrating that there exist alternative policies with lesser discriminatory effects that would be comparably as effective at serving the employer's identified business needs. Upon such a showing, Title VII liability is established. Dothard, 433 U.S. at 329, 97 S.Ct. at 2727.

2. Grounds for Summary Judgment Urged by the City

The City moved for summary judgment on the Title VII disparate impact claim, contending that it was entitled to prevail for two separate reasons. First, the City argued that the firefighters had failed to adduce statistics of the sort required under Title VII doctrine to show that PFB indeed afflicts African-Americans disproportionately and that, consequently, the firefighters had failed to show that the no-beard rule disproportionately excludes African-American men from firefighting jobs. Thus, the City claimed that the firefighters had failed even to create a genuine issue as to whether--let alone to prove as a fact that--the rule has a disparate racial impact. If it were in fact true that the firefighters lacked the evidence necessary to prove at trial that there is a disproportionate incidence of PFB among blacks, then the City would indeed be entitled to summary judgment, for where a Title VII disparate impact plaintiff fails to make out a prima facie case, the defendant is entitled to prevail. Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1525 (5th Cir.1993).

Second, the City proffered an affirmative "business necessity" defense, asserting that the ban on shadow beards is necessary to meeting the goal of ensuring worker safety. Contending that ensuring worker safety constitutes an important business goal for Title VII purposes, and that there was no genuine issue that the no-beard rule was necessary to meeting that goal, the City maintained that it was therefore entitled to summary judgment. See City's Memo in Support of Summary Judgment Motion (R-31-6-8); City's Reply Memo in Support of Summary Judgment Motion (R-39-2-3).

The district court granted summary judgment in favor of the City on the ground that there was an absence of evidence showing that the no-beard rule has a disparate impact. See Magistrates's Report (R-43-7-13). We, however, find it unnecessary to address that issue on appeal. Exercising our discretion to affirm grants of summary judgment on any adequate alternative ground fairly presented in the record, we uphold the court's order regarding the firefighters' Title VII disparate impact claim on the ground that appellants have failed to create a genuine issue as to the City's contention that the ban on shadow beards is necessitated by safety concerns.

In ruling on this ground, we assume arguendo that the firefighters have adequately alleged a prima facie case of disparate impact. Where a Title VII disparate impact challenge is mounted against a practice or action which admittedly causes a disparate impact, the defendant is entitled to prevail if (1) the defendant shows that the practice or action is necessary to meeting a goal that, as a matter of law, qualifies as an important business goal for Title VII purposes, and (2) the plaintiff fails to show the availability of less discriminatory alternative practice or action that would provide a comparably effective means of meeting that goal. Thus, in order for such a defendant to be entitled to summary judgment, the following must be true: (1) there must be no genuine issue that the practice or action is required to meet a goal that, as a matter of law, qualifies as an important business goal under Title VII; and (2) there must be no genuine issue with respect to the existence of a comparably effective less discriminatory alternative.

a. Business Necessity Defense

The City defends its decision to ban shadow beards on the ground that the prohibition is required to protect the firefighters from health and safety risks. If true, these safety claims would afford the City an affirmative defense, for protecting employees from workplace hazards is a goal that, as a matter of law, has been found to qualify as an important business goal for Title VII purposes. Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 1552 n. 14 (11th Cir.1984); New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 & n. 31, 99 S.Ct. 1355, 1366 & n. 31, 59 L.Ed.2d 587 (1979); Dothard, 433 U.S. at 331 n. 14, 97 S.Ct. at 2728 n. 14.6 But cf. International Union, U.A.W. v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991) (employer desire to guard against birth defects in employees' potential offspring does not constitute bona fide occupational qualification justifying facially discriminatory employment policy). Measures demonstrably necessary to meeting the goal of ensuring worker safety are therefore deemed to be "required by business necessity" under Title VII.

Whether the no-beard rule is demonstrably necessary to meeting the acknowledged business goal of worker safety is a factual issue on which, for the purposes of this case, we have assumed that the City, the movant, would bear the burden of proof at trial. See supra Part IV.A.1. Thus, our analysis of whether there exists a genuine issue as to this material fact begins with an examination of whether the City has carried the initial burden imposed on parties moving for judgment on issues on which they would bear the burden of proof at trial. See discussion supra Part II.B.1. The City has supported its safety allegations with evidence in the form of an affidavit from an expert in the field of occupational safety and health and with a citation to a U.S. Occupational Safety and Health Administration ("OSHA") regulation concerning use of respirators by persons with facial hair. See City's Memo in Support of Summary Judgment Motion (R-31-6, 8) (citing R-31-Exhib. 2, and 29 C.F.R. Sec. 1910.134(e)(5)(i)).

The City's expert, Kevin Downes, swore that, "Based upon my research and experience in training on the proper use of SCBA's, it is my opinion that the SCBA should not be worn with any amount of facial hair that contacts the sealing surface of the face piece." Affidavit of Kevin Downes (R-31-Exhib. 2-p 5). In the affidavit Downes detailed particular safety risks that he maintained were posed by use of SCBA's by men with facial hair. Such use would be dangerous, asserted Downes, because facial hair is likely to interfere with the forming of a proper seal between the SCBA mask and the wearer's face. An imperfect seal may permit air from the outside environment to leak into the mask--when this occurs the wearer is said to have "overbreathed"--thereby risking exposing the wearer to contaminants. Id. at p 7.7

As support for his opinion, Downes noted that three national organizations that set occupational safety and health standards--the American National Standards Institute ("ANSI"), the National Institute for Occupational Safety and Health ("NIOSH"), and OSHA--all recommend that SCBA's should not be worn with facial hair which contacts the sealing surface of the face piece. Id. at p 10. In addition to submitting the Downes affidavit, the City in its summary judgment memorandum also referred to the OSHA, NIOSH, and ANSI recommendations, and cited directly to the OSHA respirator standard. The OSHA regulation provides: "Respirators shall not be worn when conditions prevent a good face seal. Such conditions may be a growth of beard...." OSHA Occupational Safety and Health Standards, Respiratory Protection, 29 C.F.R. Sec. 1910.134(e)(5)(i).8

We hold that this evidence that safety concerns necessitate the ban on shadow beards is "credible evidence ... that would entitle [the City] to a directed verdict if not controverted at trial." Four Parcels, 941 F.2d at 1438 (quoting Celotex, 477 U.S. at 325, 106 S.Ct. at 2553 (Brennan, J., dissenting)). The City has thus carried its movant's initial summary judgment burden on the business necessity issue.

At this point, responsibility devolves upon the firefighters to come forward with evidence that, when considered together with the City's evidence, is sufficient to create a genuine issue as to the reality of the City's safety claims. The only real evidence invoked by the firefighters to counter the City's claims is the fact that for the six years between 1982 and 1988 the City permitted firefighters with PFB to wear their SCBA's over shadow beards. The firefighters argue that the fact that the shadow beard program was tested over this period, apparently without mishap or reported problems obtaining adequate seals, creates at least a genuine issue that shadow beards may in fact be safe. Firefighters' Brief on Appeal at 26; Firefighters' Memo Opposing Summary Judgment (R-33-26-27). We disagree. The firefighters have not adduced evidence showing how carefully the firefighters' seals were monitored over this period, or whether examinations were made that would have uncovered any resulting safety or health problems. The mere absence of unfortunate incidents is not sufficient to establish the safety of shadow beards; otherwise, safety measures could be instituted only once accidents had occurred rather than in order to avert accidents. Although the six-year history is not irrelevant to the question of whether it is unsafe to wear SCBA's over shadow beards, we hold that when considered in the context of the totality of the evidence, it would not be sufficient to prevent the City from obtaining a directed verdict at trial.

In reaching this conclusion we are swayed particularly by the recommendations of the occupational safety and health standards organizations. Although public employers such as the City are not required by law to comply with OSHA standards, see 29 U.S.C. Sec. 652(5) (excluding states and their political subdivisions from definition of OSHA "employer"), such standards certainly provide a trustworthy bench mark for assessing safety-based business necessity claims. It is true that the OSHA and ANSI standards speak in somewhat general terms about "facial hair" and "growths of beard" and do not specifically address the case of very short shadow beards; however, the NIOSH standard provides that "even a few days growth of stubble should not be permitted." See supra note 8. At least in the absence of any evidence showing that safety experts view shadow beards as a special case, we hold that the only reasonable inference supported by the OSHA, ANSI, and NIOSH standards is that shadow beards are encompassed by the prohibitions.

This is not to say that allegations that a challenged practice is required for safety are by any means unassailable. Expert testimony or results from adequately conducted field tests tending to show that shadow beards do not prevent SCBA's from sealing to the face would be sufficient to create a genuine issue as to the reality of the City's safety claims. However, the firefighters have come forward with no such evidence.9 We thus hold that the firefighters have failed to carry their non-movant's summary judgment rebuttal burden and that, therefore, there was in the record before the district court at the time of the summary judgment motion no evidence creating a genuine issue as to whether safety requires the ban on shadow beards.

b. Less Discriminatory Alternative Issue

As stated above, in order for the City to be entitled to summary judgment on the disparate impact claim, there must also be no genuine issue of fact with respect to whether a less discriminatory comparably effective alternative to the no-beard rule is available. The existence of a less discriminatory alternative is an issue on which the firefighters, the non-movants, would bear the burden of proof at trial. Thus, our analysis of whether there exists a genuine issue as to this material fact begins with an examination of whether the City has carried the movant's initial burden applicable for issues on which the movant would not bear the burden of proof at trial.

In such circumstances, the movant may carry the initial burden by adducing evidence affirmatively negating the material fact at issue, or else by showing an absence of evidence on the part of the non-movant to prove the fact at trial. See discussion supra Part II.B.2. As discussed above, the City has cited the OSHA, ANSI, and NIOSH safety standards which advise that safety requires that SCBA-wearers be clean-shaven. See supra Part IV.A.3.a. We believe that this evidence affirmatively demonstrates, not only that being clean-shaven is a business necessity for firefighters, but also that any proposed less discriminatory alternatives to the no-beard rule that would not require firefighters to be clean-shaven would not be adequately safe. Thus the evidence is sufficient to satisfy the City's initial burden as the summary judgment movant on the less discriminatory alternative issue.

Responsibility then devolves upon the firefighters to adduce evidence creating a genuine issue as to the availability of a comparably safe, less discriminatory alternative. The firefighters have proposed two possible alternatives to the City's rule requiring firefighters to be clean-shaven. The first is simply reinstitution of the shadow beard shaving clinic. However, in order for the shadow beard program to constitute a legitimate less discriminatory alternative, shadow beards must adequately serve the Fire Department's acknowledged business need, namely, safety. As we have explained above in addressing the City's business necessity defense, the firefighters have failed to create a genuine issue that shadow beards are safe. Thus, for the same reason, they have also failed to create a genuine issue that the shaving clinic would be a comparably effective alternative to the shadow beard ban.

The second possible alternative suggested by the firefighters is shaving only the portion of the face where the SCBA seal would come into contact with the skin. However, in the two sentences of their summary judgment papers in which they propose this alternative, the firefighters cite no evidence to show that partial shaving would be a viable and safe alternative.10 Moreover, as a matter of common knowledge, it is apparent that partial shaving would pose the same PFB problems as full-face shaving, and thus it is doubtful that the firefighters could have adduced evidence that partial shaving constitutes a viable less discriminatory alternative. Thus, the firefighters have failed to carry their summary judgment rebuttal burden of creating a genuine issue as to the viability of either of the two less discriminatory alternatives they propose.11 Having concluded (1) that the City has carried its initial summary judgment burdens on the business necessity and less discriminatory alternative issues, and (2) that the firefighters have failed to carry their summary judgment rebuttal burdens on either of these two points, we affirm the grant of summary judgment on the Title VII disparate impact claim.

The firefighters also challenge the no-beard rule on the ground that it was allegedly adopted for racially discriminatory reasons in violation of Title VII. Where, as here, Title VII plaintiffs alleging intentional discrimination--commonly known as disparate treatment--lack direct evidence that an employment-related action was taken for discriminatory reasons, courts usually use the special evidentiary framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Commun. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to determine whether the available circumstantial evidence is sufficient to prove that discrimination has occurred. See Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984).

Like the analytic framework used for disparate impact claims, the McDonnell Douglas-Burdine disparate treatment framework is composed of three stages. A prima facie case