Court: D.C. Firefighters, Paramedics Can Keep Whiskers

A federal appeals court today ruled in favor of a group of D.C. firefighters and paramedics who challenged the department’s clean-shaven policy in a lawsuit that said the grooming rules violate the free exercise of religion.

District public safety officials in 2005 banned facial hair for firefighters and paramedics, saying a breach in the seal of protective masks could expose the employees to contaminated air. Bearded firefighters and paramedics were assigned to desk duty. The clean-shaven policy mirrors federal regulations.

A federal judge in 2007 ruled in favor of the plaintiffs, including firefighter Calvert Potter and paramedic Steven Chasin (pictured at left), who cited religious beliefs in refusing to go whiskerless. Legal Times wrote about the case here. Covington & Burling, with the ALCU, took the case pro-bono. William Iverson, a senior counsel at Covington, says he hopes the District drops the litigation. “I think they can with comfort just give up on this. I am not sure why didn’t before.”

The ruling today in the U.S. Court of Appeals for the D.C. Circuit hinged on a procedural matter and isn’t likely to carve out any special niche in the body of case law under the Religious Freedom Restoration Act, Iverson says.

The appellate court noted the failure of lawyers for the District to timely raise its dispute about the safety of self-contained breathing apparatus masks. The court said only under exceptional circumstances will a circuit court consider an argument against summary judgment that was not made in the trial court.

Richard Love, senior assistant attorney general for the District, said in court last year that the city never conceded that SCBA masks are safe for bearded paramedics and firefighters. A spokesman for the city fire department, Alan Etter, did not have any immediate reaction this afternoon to the court ruling. Etter has said the District cares about the safety of its firefighters and paramedics.

Judge Judith Rogers wrote for the majority, joined by Judge David Tatel. Senior Judge Stephen Williams wrote a concurring opinion. “Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome,” Williams wrote.

Williams looked to the future in his opinion, saying the decision today will create an experiment in the District in which some firefighters and paramedics will wear beards while others go without facial hair.

“Perhaps the difference will prove inconsequential. The experiment is far from ideal, however,” Williams wrote. “Most obviously, the likelihood of acute calamity—and thus the risk that response teams will be stretched to the breaking point—seems greater in the District than almost any other American city.”

Williams said he hopes the “experiment launched by this judgment will end without having falsified the plaintiffs’ theory” that beards won’t cause a safety problem.

Comments

[dave]

NOVANGLUS,osha does not state NO FACIAL HAIR 1910-134 states :(a) the employer shall not permit respirators with tight- fitting facepieces to be worn by employees who have facial hair that comes between the sealing surface of the facepiece or interferes with the valve function.In letters of interpretation of the standard from OSHA dated 1984,85,96 and 2003 OSHA has repeatly stated that it does not ban facial hair per se, if the facial hair is neatly trimmed and does not interfere with the sealing surface or valve function,and the wearer consistantly passes a fit test the facial hair poses no hazard to the wearer

[Andrew]

What my brothers fail to recognize or admit is that the firefighter mentioned in this case has consistently proven that he can achieve a sustainable seal. So what is the problem??? As long as he is tested same as others or even twice or thrice as often as everyone that should ensure safety. What does a quantitative test measure? Is it accurate? Doesn't the fact of it's being done in NEGATIVE pressure mode with the user doing various motions designed to stretch the face in the various ways that would occur under stress mean anything when the one being tested passes with high marks??? Occasional leaks can happen to anyone. I know MANY firefighters who regularly have leakage and they have faces like cue balls. I also know a firefighter who has a very limited amount of facial hair on his chin who NEVER breaks a seal during ACTIVE training but is not allowed into the Hot zone during active calls because of OH&S rules. yes we need standards but we also need a mechanisms in place for those individuals who have the facial structure that allows a seal and can prove it.

[Firecaptain]

Is this just a "selective" religeous card being used by the plaintif(s). Do they observe the Sabbath and all other reliegious holidays, laws, customs and traditions, or just what they feel benefits their agenda personally?

[Mike Branum (Firefighter, Paramedic, Flight Nurse)]

Unfortunately, it is not just "their funeral." Firefighters with leaking facial seals use up their compressed air more rapidly due to the very nature of positive pressure breathing apparatus that you mentioned. Since firefighters work in crews, if one runs low on air and has to leave, the entire crew must exit. This decreases the amount of time that a crew can remain in a structure engaged in life-saving efforts. A firefighter who is inefficiently using his air (apologies to any bearded female firefighters) and requires rescue places fellow firefighters in peril unnecessarily. Only time will tell how significant an impact this legal conundrum will have on the fire service in DC and across the country.

[jalin]

Maybe OSHA should have completed a study prior to issuing their blanket recommendation. It is some what suspect to believe that facial hair would present any safety issues given that SCBA's utilize positive pressure. This means that atmospheric pressure is greater inside of the mask than the atmosphere surrounding the mask thus forcing air out under pressure even if there is a crack in the seal. A defect in the ability of the system to provide positive pressure would result in injury whether or not facial hair is present or not.

If it is a grooming policy then call it that and adopt a minimal facial hair policy that can be agreed upon by all parties.

[novanglus]

It doesn't matter what the court said, OSHA regulations state "no facial hair". But honestly, if these firefighters are that stupid to want to keep beards and not have their SCBA masks fit properly, hey - it's their funeral.