D.C. Court Decision Sharpens Debate On Firefighter Grooming Standards

A federal court decision in a lawsuit (Potter v. District of Columbia) challenging the Washington, D.C., Fire Department's ban on firefighter beards has brought into sharp focus the debate over what are appropriate fire department grooming standards. Questions about grooming standards have raised impassioned debates in parts of the fire service that pit religious freedom and freedom of speech against concerns about safety and other public purposes.

The long-simmering Washington, D.C., dispute dates back to at least 1997, when the fire department adopted a grooming standard requiring hair to be of an acceptable length, and limited mustaches and beards. The current legal action commenced in 2001, when Muslim firefighters claimed that the department's grooming policy violated their religious rights under the Religious Freedom Restoration Act, and their freedom of speech protected by the First Amendment to the Constitution. In June 2001, a federal court granted a preliminary injunction directing the department not to impose a grooming policy on the firefighters that would require them to violate their religious beliefs. A preliminary injunction is a temporary measure taken by a court to hold the parties in place so that no lasting harm is done to either's interests while the dispute is being resolved. And so, the firefighters with beards continued in their jobs.

This "temporary" injunction remained in effect for four years while negotiations and procedural motions continued, with no resolution. However, things began to move quickly on June 7, 2005, when the department issued "Special Order 20." This order prohibits firefighters who must wear breathing apparatus from having facial hair "that comes between the sealing surface of the facepiece and the face." The department's new order led to a quick succession of events that culminated in the court's issuing a ruling on Aug. 11 that modified the temporary injunction. The court ruled that:

• The department is not required to assign the plaintiff firefighters to field operations unless they can pass an appropriate fit test.
• Plaintiffs may be placed on administrative duty until they can pass an appropriate fit test.
• The department must provide the plaintiffs an opportunity to take and pass an appropriate fit test.

In a lengthy (and quite readable) memo accompanying the court's order, Federal District Court Judge James Robertson describes the dispute's lengthy history. He offers an in-depth analysis of the issues raised by the law's application to the fire service. In particular, Robertson sought to look beyond the surface of the department's safety assertion. He noted that it is undisputed between the parties that firefighters who wear beards can safely operate with positive-pressure self-contained breathing apparatus (SCBA). However, the disagreement comes with respect to negative-pressure masks, which use filters to create a negative pressure-air-purified respirator. These devices were issued to D.C. firefighters as part of "Go Bags" after the 9/11 terrorist attacks to enable them to operate for lengthy periods in hazardous environments.

The Religious Freedom Restoration Act prohibits government agencies from substantially burdening a person's exercise of religion unless there is a compelling governmental interest. Further, any restriction must be the least-restrictive means of furthering that compelling government interest. The court concluded that the firefighters had sustained their burden to show that the prohibition against beards was a substantial burden on their religious exercise. Therefore, it was up to the department to show that Special Order 20 furthered a compelling government interest and was the least-restrictive means of doing so. The court quickly agreed that Special Order 20 did further a compelling government interest: preserving the health of firefighters so that they can help to protect the public and other firefighters.

The more difficult question was whether Special Order 20's requirement that fit testing be done on a clean-shaven face was the least-restrictive means of furthering this compelling interest. The department relied on the federal Occupational Safety and Health Administration (OSHA) standard that requires that fit testing be done on a clean-shaven face. Further, the department argued that using alternative equipment is not viable because it must maintain interoperability with surrounding jurisdictions.

The court accepted the department's assertion that the negative-pressure devices are necessary, but it concluded that the record is unclear on the question of whether bearded firefighters could operate safely with them. The department has been unwilling to allow bearded firefighters to be tested on these devices, due to its concern that fit tests of these devices on bearded faces are unreliable. The court found this refusal unacceptable and ruled that the department must offer an acceptable means of testing whether bearded firefighters can safely wear these devices: "It is the department's duty to assess risk. A court has no competence...to second-guess that assessment." But the department must fulfill this duty.

Given the present state of the record, the court concluded that it is impossible to say which side is correct about the validity of current fit-testing procedures on the negative pressure devices. And so, the court required the department to let bearded firefighters demonstrate that they can pass an appropriate fit test. Although Robertson suggested a way that the department might provide for an appropriate test, he admitted that he could not specify the manner by which the department must provide this opportunity. And so, while some issues have been resolved, there continues to be no final resolution to the dispute.

The D.C. dispute continues, and similar disputes have arisen in other jurisdictions. Just a month after the D.C. court decision, a local court in Philadelphia reached a conflicting result in a similar lawsuit based on a similar Pennsylvania law. The judge rejected the lawsuit seeking to overturn a Philadelphia Fire Department ban on beards. It upheld the department's ban, ruling that safety is a compelling interest that warrants an exception to the law. Further, it said that the ban is the least-restrictive means of "furthering its compelling interest in maximizing safety for its members." But, in contrast to the D.C. opinion, there was no underlying explanation for how the court reached its conclusion.

These types of cases will continue to arise, based on religious and other objections, and courts probably will continue to reach differing decisions as to whether various fire department grooming standards are legally valid. But, as the D.C. court's memorandum and order clearly indicate, a simple departmental assertion about safety no longer will be sufficient to answer a firefighter's claim that a grooming standard violates a legitimate religious belief. Unless departments can show that the requirement serves an important purpose, and that there is no less-intrusive way to accomplish that purpose, these standards will continue to fall.