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.