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After battling blazes for 23 years, Berkeley firefighter Harry Vernon’s job now rides on whether or not he will shave his neat, quarter-inch beard. State rules say firefighters can’t have beards. Vernon, like about half of all African American men, suffers from a skin condition that causes painfully inflamed ingrown hairs after close shaves. He refuses to shave and has been told his modest beard could be grounds for termination. So Vernon filed suit Tuesday in Alameda County. Vernon v. City of Berkeley, 842999-1, alleges that the city and the state violate discrimination laws and that the agencies have failed to accommodate the firefighter’s skin condition under state disability laws. His attorney, San Francisco solo Lawrence Murray, hopes to make the case a class action. “It is very ironic,” said the firefighter at a press conference Tuesday. The 47-year-old says he is the only firefighter who has been told his modest beard could be grounds for termination. “I am the one who spoke up and said that I have this skin condition.” While Vernon awaits the outcome of his case, shaving is not an option. When he tried to comply with the rule in 1984 his face erupted in painful bumps that prevented him from wearing the face mask respirators that firefighters use on the job. He was on disability leave for three weeks so the ingrown hairs could be pulled out and so his face could heal. Back then, the city relaxed its rules and allowed him to wear a quarter-inch beard. “I liken it to having an ingrown fingernail,” said Vernon, who said he has only been completely clean-shaven a few times in his entire career. While acknowledging that state law offers more protection for workers, Murray said he ultimately chose to file in state rather than federal court because it moves more quickly. Vernon could be retired by the time the case made it before a judge in federal court, Murray explained. Approved by the state Legislature last year as Assembly Bill 2222, the state law — called the Prudence K. Poppink Act after a deceased administrative law judge with the Fair Employment and Housing Commission — makes it clear that California’s Fair Employment and Housing Act offers vastly broader discrimination protection than the federal Americans With Disabilities Act. A large number of African-American men suffer from pseudofolliculitis barbae, also known as PFB, but California courts have not addressed regulations that force black men to be clean-shaven, Murray said. Fresno solos Dean Gordon and Jeffrey Wall and Sanger solo Mark Johnson are co-counsel on the case. While Murray hopes to have the case certified as a class action, it is unclear how many California firefighters could be a part of the class. There are roughly 900 black firefighters who work in the southwest region of the United States, said Keith Cormier, a regional director of the International Association of Black Professional Firefighters. Historically, state and federal laws have forbidden firefighters to wear facial hair because it obstructs the face mask respirators that firefighters use on the job. Regulators maintain that facial hair prevents a tight fit, which could jeopardize their safety, said Murray. Vernon has used the respirator — called the Self-Contained Breathing Apparatus — while wearing a short beard without problems for more than 20 years, the lawyer said. The city of Berkeley feels that the state Occupational Safety and Health Administration shaving regulation “overreaches,” but the city is required to enforce the state rule, according to a statement that was released by the city on Thursday. “Thus although the city is sympathetic to and had advocated … that Cal/OSHA’s revised regulations unfairly impact certain groups of employees and are unnecessary for employee safety, the city of Berkeley has no choice but to follow the law.” The state has always required that firefighters wear tightly fitting masks for respirators, and Cal/OSHA interpreted that to mean that the workers could not have facial hair, said A. Lennox Welsh, special counsel for regulation development at Cal/OSHA. A few years ago, the federal guidelines changed to explicitly ban beards — and Cal/OSHA’s changed accordingly, Welsh said. Vernon has unsuccessfully petitioned the state to accommodate his skin condition, Murray said. Being clean-shaven “is a time-honored concept in industrial hygiene,” said Welsh, who declined to comment on the suit specifically. Around the country black men have sued employers who ban facial hair with varying amounts of success. In 1993 the 11th U.S. Circuit Court of Appeals ruled in favor of Atlanta in Fitzpatrick v. City of Atlanta, 2 F.3d 1112. In that case the city didn’t allow firefighters to wear “shadow” or close-cropped beards. In affirming the lower court’s summary judgment the court wrote: “In light of the city’s substantial evidence that SCBA’s cannot adequately seal over shadow beards … the firefighters’ evidence is insufficient to create a genuine issue as to the availability of accommodation.” That same year, in Bradley v. Pizzaco of Nebraska, 92-3781, the 8th Circuit ruled the opposite. It opined that Domino’s Pizza “was free to establish any grooming or dress standards it wishes … we hold that reasonable accommodation must be made for members of the protected class who suffer from PFB.” Last month, a Washington, D.C., federal judge ordered that the fire department reinstate several firefighters who were put on administrative leave because shaving violated their religious beliefs. Meanwhile, Vernon has been assigned to desk duty. He says he was out of work for 11 months for stress leave related to his case, which drained his sick and vacation time. He’d rather be fighting fires, he said. “There is a lot to miss about fire suppression,” he said.

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