New York City’s dismissal of an otherwise promising police recruit because he wore an inch-long beard violated his constitutional right to practice his Chabad Lubavitch religion, a federal judge ruled.
Southern District Judge Harold Baer Jr. (See Profile) decided that, contrary to the city’s contention, the NYPD does not uniformly enforce its grooming rules for male officers limiting their facial hair to one millimeter in length.
But, Baer wrote in Litzman v. New York City Police Department, 12-cv-4681, plaintiff Fishel Litzman was fired in 2012 “pursuant to a policy that is not uniformly enforced.” The judge upheld his claims of a violation of the free-exercise-of-religion clauses of the federal and state Constitutions.
“Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound,” Baer wrote.
The NYPD grants approval to officers to grow beards longer than one millimeter for special occasions such as religious holidays, weddings and funerals, as well as for officers on undercover assignment, Baer noted.
“Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate” as the basis of the court’s review of this discrimination claim. To withstand the strict scrutiny test, the city would have to show that its one-millimeter rule advances “interests of the highest order and must be narrowly tailored in pursuit of those interests,” Baer said.
According to the judge, the city’s best explanation for the one millimeter rule is that officers’ faces must be beardless so they can qualify to use apparatuses under the NYPD’s Chemical Ordinance, Biological and Radiological Awareness Training Program (CBRN), where they need to wear breathing masks in the presence of dangerous chemicals or fumes.
While almost all new officers have received CBRN certification since it was added to the NYPD’s training in 2005, Baer’s ruling indicated that only 69.3 percent of the city’s police officers overall are certified under the program.
“Neither in their brief nor at oral argument did the Defendants provide a legitimate explanation as to why the one-millimeter rule is enforced unevenly throughout the department, i.e., why Plaintiff was terminated when other officers who have beards longer than one millimeter remain on the force without any exemption or why some temporary exemptions are permitted,” Baer wrote.
Litzman, 38, was nearly at the maximum age for qualifying for the NYPD academy when he was sworn in as a probationary officer in January 2012.
He received four “command disciplines” in January and February for his beard length and, when he made a formal request for an exception to the force’s facial hair policy on religious grounds, was told that he could only have a beard of no more than one millimeter in length.
He received a termination letter on June 8, 2012.
According to Litzman’s court filings, he was in the top 1.3 percent of his class in terms of test scores and his performance in other areas, such as marksmanship, when he was dismissed from the academy.
Litzman’s attorney, Nathan Lewin of Lewin & Lewin in Washington, D.C., said Litzman was up front with police officials from his arrival at the police academy that he wore his beard as he did in adherence to the orthodox Jewish Lubavitch beliefs.
Lewin said Litzman was also clear with the NYPD that limiting the beard to one millimeter, which is about three-days’ growth for Litzman, was unacceptable to satisfy his religious beliefs.
Lewin said he will draft a proposed order at Baer’s behest calling for Litzman to be reinstated at the police academy and to regain any credits for time or benefits lost through his termination.
“I am hoping that this is the beginning of the end of the NYPD’s rule prohibiting beards,” said Lewin in an interview Monday. “I think it’s about time that the NYPD joined the Washington, D.C., police, the Newark police and various others that do not discriminate against men who wear beards for religious reasons.”
Richard Henry Dolan of Schlam Stone & Dolan in Manhattan also represented Litzman.
Assistant New York City Corporation Counsel Keri Reid McNally argued for the NYPD.
“We respectfully disagree with the Court and are considering our options,” the corporation counsel’s office said in a statement Monday.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.