A city ban on beards for firefighters and paramedics is pitting the District of Columbia against a group of employees who say their religious beliefs prevent them from going clean-shaven.

The fight is now before the U.S. Court of Appeals for the D.C. Circuit, where District officials are hoping a three-judge panel overturns a lower court decision that allowed the employees to keep their facial hair.

Lawyers for the city argue that the beards could interfere with protective masks worn during emergencies, endangering the workers and putting the city at risk of a lawsuit. But the six firefighters and paramedics who are challenging the policy say they’ve been wearing beards for years without an incident and that the city is more concerned about keeping emergency workers looking clean cut than about safety issues. Judge James Robertson of the U.S. District Court for the District of Columbia sided with the men last year, granting them summary judgment and a permanent injunction against the city. Robertson cited provisions of the Religious Freedom Restoration Act, which requires courts to balance the exercising of religious liberties with competing government interests.

Lawyers for the city, led by Richard Love, senior assistant attorney general, say the facts are still in dispute. Their appeal to the D.C. Circuit will be heard by Judges Judith Rogers and David Tatel and Senior Judge Stephen Williams this week.

The employees are represented by Covington & Burling associate Joshua Doan, who is handling the case pro bono, along with the American Civil Liberties Union. Doan, who will argue the case before the D.C. Circuit, says the paramedics and firefighters “shouldn’t have to choose between their religions and serving the public.”

LIABILITY ISSUE

Disputes about facial hair and religious freedom have been waged in courts across the country for decades, especially ones involving prisoner rights. Cases where grooming intersects with personal safety are rare among the mix. In one high-profile 1999 case, the U.S. Court of Appeals for the 3rd Circuit ruled that two Newark, N.J., police officers could wear beards for religious reasons, though department officials said they worried that members of the public wouldn’t believe the bearded men were police. The Supreme Court denied a petition for certiorari.

In D.C., bearded firefighters first challenged the department’s grooming policy in a 2001 lawsuit in the U.S. District Court and won a temporary injunction. Fire department administrators backed off enforcing the policy—which set a quarter-inch maximum for beards—and the suit was dormant for four years. The District revised its rules, creating a new safety policy that outright banned all facial hair. The new order applied to paramedics in addition to firefighters. Paramedics filed suit in 2005, and their complaint was merged with the original challenge from the firefighters.

“They know they can’t win on a grooming policy, so they’ve done everything they can to make it into a safety policy,” ACLU National Capital Area legal director Arthur Spitzer says. “My personal view is that it’s largely a grooming policy. It was pretty clear at the time that this had to do with how people looked.”

Alan Etter, spokesman for D.C. Fire and Emergency Medical Services, says officials have no desire to promote uniformity of appearance. But the president of the D.C. Retired Firefighters Association says firefighter appearance is indeed part of the debate. “When you travel around the country very seldom do you see a beard on a firefighter—or long hair. Some of our members stand out like a sore thumb,” says Butch Oliff, who retired from the District fire department in 1987. Oliff fears the beard issue will end in a “giant lawsuit, and the District ends up losing lawsuits.”

Fire department officials and District lawyers point to Occupational Safety and Health Administration regulations that do not allow hair between the sealing surface of the mask and the person’s face. Fire officials are worried a resident or another emergency worker could sue for negligence if they don’t create and enforce a policy. “The liability is on us. We are on the hook, there’s no question about it,’” Etter says. “We don’t want to stand at the funeral of a firefighter and tell his wife and family that we were in a position to do something about this.”

Lawyers for the plaintiffs believe the District would likely fight a lawsuit from an injured firefighter with a beard, saying the employee assumed a risk wearing a face mask that may not have had a proper seal. But Doan and Spitzer, citing court-ordered equipment tests in the case, say the plaintiffs in the case can get a proper seal on all face masks used in the department despite the beards.

Nathan Lewin, a veteran lawyer in the District who has long advocated for Jewish clients in conflicts over grooming and public policy, says if the District is concerned about liability, it could seek the bearded plaintiffs to sign a waiver vowing not to pursue civil action.

“Why can’t that simply be waived by agreement?” says Lewin, who is not representing any of the parties. “If that’s the concern, it would not be unreasonable.”

Etter says the city hasn’t tried liability waivers because they are subject to court challenges. Two plaintiffs, firefighter Calvert Potter and paramedic Steve Chasin, say they would seek legal advice if asked to sign a liability waiver.

Potter, a Muslim whose beard is five inches long when his hair is pulled straight, and Chasin, whose whiskers extend a quarter-inch or so, both say they are not concerned about risk of injury, because they believe their equipment works with their beards. “Why would we sign a waiver when the equipment is working?” says Potter, who is part of the special operations division and has been with the department since 1992. “I’m still doing what I’ve been doing for 16 years. There is no hesitation doing what I do. Our job is to go in and get people out.”

RELIGIOUS FREEDOM

Judge Robertson last year questioned whether it was prudent for the courts to make decisions he said were best left to the “politically accountable” branches. But Congress, through the Religious Freedom Restoration Act, assigned the task to the courts—and the judge said he would not shirk his duty.

“Courts have little competence to locate and set the proper boundary between the accommodations demanded by persons with religious needs and the general safety and welfare of the public,” Robertson wrote in an opinion granting summary judgment to the plaintiffs. Without the act, Robertson said, “it would not be the business of the judicial branch to decide whether it is safe enough for a firefighter to wear a religiously required beard, or whether the mission of a fire brigade is compromised by steps taken to accommodate this religious expression.”

Robertson determined the clean-shaven requirement violates the act—a law that carries weight only in the District and with the federal government since the Supreme Court struck down its applicability to states in 1997 in Boerne v. Flores.

Mandating a clean-shaven face, Robertson declared, was not the least restrictive measure the District can take in finding a balance between religious freedom and the government interest in safety.

“The firefighter-plaintiffs have been doing this for a long time with facial hair,” says Doan of Covington & Burling. “These plaintiffs have not been sitting on the side saying, ‘I want to give firefighting a shot.’ ”

Lawyers for the District, including Love, say the city doesn’t concede that any type of mask is safe for bearded firefighters, though Robertson and the plaintiffs’ lawyers say they did. Love declined comment.

Plaintiffs Chasin and Potter say they fear they will be fired if the District prevails. Both say reaction to their stand has been mixed. The beard “is how I practice and celebrate my religion,” says Chasin, 40, who acknowledges that there are other religious practices he doesn’t follow. “I am not the most perfect Jew,” he says.

Potter, 46, says he doesn’t believe his beard affects his ability to do his job, and he longs for the “cloud of uncertainty” to be lifted from the department. “Hopefully,” he says, “the Constitution is worth the paper it’s written on.”


Mike Scarcella can be contacted at michael.scarcella@incisivemedia.com.