In the last two weeks or so, my employment discrimination law class has been studying disparate impact litigation.  One of the more challenging cases that we study is the Fitzpatrick case from the 11th Circuit concerning the no-beard policy of a fire department.

The policy is supported by the need to have a good seal between a firefighter’s respirator and his face.  The policy was claimed to have a disparate impact on black firefighters with a skin condition making in difficult for them to shave.  The 11th Circuit, in 1993, found that although there might be a disparate impact, the fire department was able to show that the practice was consistent with business necessity because of safety concerns the fire department had regarding use of these respirators by firefighters even with so-called shadow beards.

Fast-forward fifteen years and now comes a similar case in the D.C. Circuit concerning the no-beard policy of the fire department. Instead of race discrimination, this suit alleges that a clean-shaven face for safety personnel violates some employees’ religious freedoms under the Religious Freedom Restoration Act of 1993 (RFRA).  As such, the Title VII framework does not apply and instead the court must balance the exercise of religious liberties with competing government interests. This type of balancing test reminds me much more of a public employee case involving free speech rights.

In any event, the BLT blog has the details:

The [D.C. federal] appeals court today heard argument in a case where the exercise of religious freedom—wearing a beard—clashes with the District’s interest to protect firefighter and paramedic safety and the welfare of the community. A federal district judge last year said the District’s policy requiring clean-shaven faces violates the Religious Freedom Restoration Act. Lawyers for the District appealed. The Legal Times story on the case is here.

Richard Love, senior assistant attorney general for the District, argued today the city never conceded that the use of a self-contained breathing apparatus—SCBA—is safe for first-responders who have beards. Facial hair, Love argued, interferes with the mask’s seal and increases the potential that an employee will be exposed to toxic air if there is a breach. There have been no reports of injury or death, however, due to improper seals. Still, Love said there is a “compelling government interest to maximize” public safety to prevent an unfortunate event. Assigning a bearded firefighter or paramedic to an administrative duty does not go far enough to protect the public, Love said.

Covington & Burling associate Joshua Doan—arguing his first case before the D.C. Circuit—said the District had allowed firefighters and paramedics to wear beards for years. District officials began strict enforcement of a grooming policy in 2001 and later outright banned all facial hair—for firefighters and paramedics—in 2005. Two lawsuits from firefighters and paramedics were merged, and U.S. District Judge James Robertson sided with the bearded city employees last year and issued a permanent injunction against the District. Doan argued in court the city is “quibbling.” There is no genuine dispute about fact, Doan declared.

Some of the arguments here are similar to ones in Fitzpatrick, including evidence there had not been an incident yet with a firefighter with a beard.  That same argument was rejected in Fitzpatrick because the court ruled that the fire department should not have to await an incident before taking action.

I’ll be curious to hear whether technology has advanced with respirators in the last one or two decades so that a beard would not cause the same hazard, thereby lessening the government’s interest.  In any event, it will be interesting to see whether or not the D.C. Circuit relies on the Fitzpatrick precedent in weighing the interests of the parties.