A group of bearded firefighters has won the latest round in the long-running legal battle over a District of Columbia Fire and Emergency Medical Services Department policy that requires firefighters to be clean-shaven.
The story began in 2001, when the department adopted a "grooming policy" prohibiting firefighters from wearing beards. A group of firefighters challenged the rule and won a temporary injunction that prohibited the department from enforcing its rule. In 2005, the department issued a "safety policy," which led those same firefighters to seek a permanent injunction. The district court modified its injunction to require the department to offer the firefighters an opportunity to demonstrate that they could pass a fit test. It allowed the department to place those who could not pass the fit test on administrative duty. The 2005 decision also held that, "It is undisputed that firefighters who wear beards can safely operate the positive-pressure self-contained breathing apparatus (SCBA)…The disagreement in this case concerns the safe operation of negative-pressure masks by firefighters."
There followed a period of considerable legal wrangling. In 2007, a federal judge again ruled in favor of the firefighters/paramedics (see Fire Law, March 2006). The city appealed, but in March of this year, a federal appeals court affirmed the lower court's decision to grant a motion for summary judgment (Potter v. D.C.). The decision prohibits the department from enforcing its ban on beards against the firefighters involved in this lawsuit.
To understand the decision, it's important to understand some basic principles of civil procedure (this is a civil, not criminal case). A court will only consider cases in which there is a genuine dispute about either the relevant facts or applicable law. If the plaintiff believes that the defendant has not offered information disputing its claims, it may file a motion for "summary judgment." Basically, the plaintiff is saying that the defendant (in this case, the fire department) hasn't disputed the factual basis for the lawsuit. Summary judgment is awarded if the court finds no issues of "material" fact requiring a trial for their resolution. In applying the law to the undisputed facts, one party (the firefighters) is clearly entitled to judgment.
The summary-judgment process is meant to eliminate the need to try settled factual issues. It is a way for courts to manage their dockets so that they spend time only on cases in which there is a legitimate disagreement.
In the Potter case, the firefighters based their claim on the Religious Freedom Restoration Act (42 U.S.C. 2000bb, et. sec.). That federal law prohibits the federal government (and the District of Columbia) from burdening a person's exercise of religion unless the government demonstrates that imposing such a burden:
- Is in furtherance of a compelling governmental interest; and
- Is the least restrictive means of furthering that compelling governmental interest.
The statute makes it clear that the government must demonstrate that it meets both of these requirements if it is going to impose a burden upon a person's exercise of religion. So, in this case, the department is required to demonstrate that:
- It has a compelling interest in restricting firefighters from wearing beards; and,
- The ban on beards is the least restrictive way to meet that interest.
Both parties agreed that the firefighters wear beards because of sincere religious beliefs, so the test is relevant. They also agreed that their safety and the safety of the people they assist is a compelling interest. But, the firefighters disagreed with the district's position that the clean-shaven requirement is the least restrictive means to protect the safety of firefighters.
Much of the lower court proceeding concerned the safety of air-purifying filters (APRs) and positive air-purifying filters. However, the court concluded that the clean-shaven policy was not sufficiently narrowly tailored because the department could redeploy bearded firefighters out of the zone in which APRs are required — either into areas where SCBA are required or into areas where no protection is needed.
According to the appeals court, the District of Columbia's lawyer explicitly disavowed during the initial trial court proceedings any claim that SCBA were dangerous for bearded firefighters. The court cited the testimony of then-Captain (now Battalion Chief) William Flint, the fire safety officer, as a basis for concluding that the department was not concerned about the safe use of SCBA by bearded firefighters. Instead, according to the court, the district argued that the policy was necessary for a situation where a firefighter may have to go into a contaminated area (such as the World Trade Center) for an extended period.
But, in its appeal of the trial court's motion for summary judgment, the district didn't challenge the court's finding that bearded firefighters could be redeployed away from areas in which a negative-pressure mask is required for extended operations. Instead, it said that it never conceded that bearded firefighters can safely use SCBA, and argued just the opposite.
The appeals court, however, rejected the district's argument that it contested the assertion that bearded firefighters are safe when using SCBA in a smoky environment. It concluded, "Given the opportunity and the burden to dispute the safety of SCBA, the District of Columbia instead offered only a technical quibble…"
The district seemed to use one argument at the trial level, but another upon appeal. It bore the burden of showing that it had raised an issue as to the safety of SCBA worn by bearded firefighters in the initial trial, but it failed to do so. And so, it lost.
This result is troubling, however, because there certainly is debate as to the relative safety of SCBA use by bearded firefighters. In a concurring opinion, Senior Judge Stephen Williams expresses these reservations, "If the sole aim of the law were an open search for truth, we would plainly reverse" the lower court's decision. However, he writes, the district's "own muddled litigation strategy" made the initial decision a legitimate outcome for this case.
Although Judge Williams sees the result of this case unsatisfactory, he is able to look on the bright side at least a little. He sees the outcome as a "semi-natural experiment." Some DC firefighters will be fighting fires while bearded, while others will be adhering to the OSHA rule, or its equivalent. But, he concluded ominously, "Perhaps the difference will prove inconsequential. The experiment is far from ideal, however. 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."
What's next? DC Fire Chief Dennis L. Rubin (a Firehouse® contributing editor) says that the decision will be appealed to the full Court of Appeals. The recent decision really is about legal procedure and the district's legal strategy as much as it is about the safety of bearded firefighters.
This case is less about the legal status of firefighters with beards than it is about legal strategies. This leads Chief Rubin to offer an important piece of advice for departments faced with the threat of legal action. "Pay attention to the details up front," he says. When confronted with a potential legal situation, he advises to take it seriously, even if it seems frivolous at the time.
Those are wise words for all. An ounce of prevention is worth a pound of cure.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
