Human Resources News & Insights

Court: No-beard policy violates religious bias law

Can an employer require its employees to be clean shaven if workers wear facial hair for religious reasons? The situation gets even more complicated when workplace safety is involved.

A federal court has ruled the District of Columbia can’t force its firefighters to be clean shaven.

The court ruled firefighters who wear beards for religious reasons are exempt from the District’s no-beards policy under the Religious Freedom Restoration Act.

The court said the District failed to prove its argument that beards stand in the way of good respirator fits. Firefighters use respirators to breathe when fires create a lack of oxygen.

The issue surrounds the firefighters’ use of self-contained breathing apparatuses (SCBAs).

There are two types: Those with positive pressure have been shown to protect against any leakage that might be caused by facial hair.

However, questions remain about leakage with negative-pressure SCBAs.

The court ruled the District didn’t show why firefighters with beards could not be redeployed elsewhere when negative-pressure respirators were required.

As it stands now, the ruling is the opposite of what’s required by OSHA: “The [respirator fit] test shall not be conducted if there is any hair growth between the skin and the facepiece sealing surface, such as stubble beard growth, beard, mustache or sideburns which cross the respirator sealing surface.”

However, OSHA regulations don’t cover public employees.

Cite: Potter v. District of Columbia, U.S. Court of Appeals, DC Circuit, No. 07-7163, 3/6/09.

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  1. This will return to court in the future. It has been in and out of court many times and it has been brought to court by the DC firefighters at least twice that I know of. The court’s error is this statement: “The court ruled the District didn’t show why firefighters with beards could not be redeployed elsewhere when negative-pressure respirators were required.”

    The lack of understanding about limited manpower, associated with specific job assignments in a hot zone, (chemical, hazardous atmosphere, heat, smoke) zones during a search that may turn unexpectedly into a hot zone and many other circumstances was a failure of the court. Or it could be viewed as a failure of the DC officials to present to the court. Add to that the inescapable increase in exposure illnesses and you have a ‘you asked for it’ nightmare that the DC firefighters seem to want.

    Before it becomes an argument most organizations use positive pressure regulators. But again the court was under the assumption that PP regulators “protect against any leakage that might be caused by facial hair”. The side issue is that if the facial hair is causing the leak then fit testing the mask will disqualify the wearer from performing an essential job function, wearing the mask.

    Here is what will happen, departments will have to do some serious reorganization or deployment of manpower that they do not have, departments will have to hire personnel to cover those alternate assignments that the court thinks are out there, this will return to court in other forms such as injuries or increases in fire loss damages, or it will return to court as a case that is burdensome on the department.

  2. Just have the bearded folks sign a waiver that states they understand they are increasing their own health risks and that the department is not responsible for any respiratory illnesses now or ever in the future. Also – they will be deployed where needed – not only where their beards are safest.

  3. Waivers are worthless if pursued in court, ultimately the employer is responsible for enforcing all rules and regulations regarding the safety of its employees or removing them from the danger. Uncomfortable place to be in as an employer. Curious to me how the judge can overturn Federal and State Safety guidelines and come up with its own, just how much authority do they have? What John says makes sense, it appears that the DC officials didn’t do a very thorough job in documenting their case. If this ruling stands, how does that affect discrimintation when hiring? Will there be a % of employees hired with facial hair and a % without, of course for safety purposes. What liability is the employer opened up to now? Why don’t you just tie our hands and increase our liability insurance because claims will be rolling in from discrimination in hiring, work related injuries and even negligence or possibly wrongful death due to not enough employees able to perform the job that they are paid to perform.

  4. I am also concerned about non- bearded employees claiming that they are being unfailry sent into harms way with higher frequency than bearded employees. I maight argue that this paces an undue burden on managment.

  5. Liberal Judges repeatedly venture into the realm of the absurd.

  6. Rich,SPHR says:

    This ruling will not just affect firefighters if the courts ultimately reject safety as reason to trump an individuals faith-based reason for not shaving. Homeland Security offices (not just Federal, but state and local offices), CBT teams, HAZMAT teams, and other first responders. It will also affect workers in the wastewater management field, who have to wear masks when going underground.

    I’d like to get a look at the brief D.C. Fire submitted in the case. Did they really do a bad job of presenting the issue, or is this federal judge going too far out in his/her own?

  7. Many public jobs have certain requirements from test scores on civil service exams to so many hours of gun training. Why can’t it just be a safety requirement for the job regardless of who it is?

  8. “Cy”: You ask how the judge could overturn the safety guidelines. Simple … this is just more of the same excess judicial activism that has been going on for years. Courts frequently make stupid decisions because they never have to suffer any of the negative repercussions of those decisions. Whether D.C. made a strong case or not is irrelevant if a liberal court decides they simply cannot allow the slightest infringement of anyone’s constitutional rights (or at least only those rights the court agrees with).

    Biggest problem with this decision is that it doesn’t just endanger the firefighter who doesn’t shave, but also all of his teammates who may have to risk their own lives dragging his tail out of a burning building after he collapses from smoke inhalation. Shame on the non-shaver for putting himself above the safety of his buddies.

  9. Quick question for the lawyers.

    In one field I’ve worked in we did general training on Hepatitis B—what it is, what it does, how it can affect one’s health and then offered a person a chance to have a vaccination against Hepatitis B at no cost to the employee or to decline such a vaccine. The vaccine was explained in common language and individuals were instructed to consult their general physician or a medical professional regarding any questions. Employees were also told that they could change their minds and we would provide the vaccine at no cost.

    With individuals who wear a beard and refuse to shave—could something similar be developed regarding breathing apparatus’ and would it stand up in court if there was also two items in the acknowledgement that 1.) Allowed employees to request a transfer to a department where positive pressure devices were already present for employee use or permitted an employee to purchase their own positive pressure device at their expense, and 2.) Held the employer harmless of future health or death claims on the behalf of the employee or surviving family?

  10. WOW! Wouldn’t you love to be the guy in charge at a 4 alarm fire at 3 am and try to remember which companies have guys who have beards let alone who the individuals are? If judges were liable for their decisions would this affect any of their rulings??? Hmmmm loss of life results in company getting sued so company could file a counter against the judge who put them in this predicament…

  11. Religious reasons?? Are we talking about Amish firefighters?

  12. Rasta – most likely, possibly a very old Jewish Sect?

  13. Michelle says:

    This is crazy. It is clearly a safety situation and redeploying I can see putting a undue hardship on others.

    I am all for religious freedom & some stories it was clearly discriminatory making people shave, but this is not one of them.

  14. Patrick, PHR says:

    I get the safety concern and feel that deploying someone with a beard somewhere else sounds like an undue hardship, but I think a lot of the respondents here are minimizing the employee’s religion. If it was Christianity that was causing a safety concern, I think the replies on this board would be much different.

  15. Christianity doesn’t require a beard and don’t go making it a religion thing to hide behind, OOP’S my bad they already did! This is just another case of grown men acting like kindergarteners! GROW UP and quit being stupid and earn your paycheck just like everybody else. It’s like Rob G said above, he is a liability to the rest of his team mates and take it from somebody who has been there and done that, I wouldn’t want his sorry butt in no fire with me because he definitely wouldn’t have my back!

  16. Patrick I agree to a point with what you are saying. The person’s religion should be respected in the comments. In fact there are other religions that involve the male not cutting his hair and not cutting a beard. Beyond that females may also have to alter their hair style if it becomes an issue where safety gear can’t be donned or if hair becomes an entanglement hazard. None of these issues should be or can be by law a person’s an employer’s personal opinion.

    On the other hand being a firefighter of some 37 years and the HRO of the department I know what the risk are for an improperly sealed facemask of any type. Secondly the firefighters that filed this lawsuit know the hazards as well. They know that if they fail the fit testing then they will not be allowed to perform fire ground duties which are an essential job function. They also know that the average ‘air time’ for a mask is 15 – 20 minutes under heavy exertion and that a leaking mask will deplete much faster. Meaning hot zone time that may take you 10 minutes to get to and 10 minutes to get back to your exit will seriously compromise safety time for the FF and compromise rescue and search efforts as well as diminish suppression time thereby increasing fire ground loss in dollars to the owners.

    This was a foolhardy ruling done by people who have no insight into the realities of fire ground work. Sadly it was brought by the very people that the ruling will hurt.

  17. Most applications or interviewers ASK BEFORE HIRING someone – Is there ANYTHING that would prevent you from performing this job? Knowing a firefighter has to wear SCBAs, the applicant would have to answer honestly. In the plant where I used to work in HR, EVERYONE inside the plant had to be shaven – it was a matter of HAZMAT policy. As someone mentioned, it not only affects the person not wearing the mask, but the ones who may have to “save his tail” when his SCBA fails. I am a strong believer in religious freedom, but persons of certain religions may need to aspire to jobs that fit their beliefs when it comes to everyone’s safety. When safety is not the issue and it is a matter of celebrating this on that day or this day or working on Saturdays, I do think comprises can and should be made in certain instances. NEVER should safety be ignored.

  18. D Davis –

    There are religous purposes behind some facial hair issues – just becuase you do not agree does not mean that they do not exist. If your faith has no restrictions or requirements then lucky you.

    I agree though that safety and not placing an undue burden on fellow firefighters MUST be considered and not sluffed off as this judge has done.

  19. Simple solution – Let those with the beards buy their own positive-pressure SCBAs.

  20. Ed,

    If you re-read my message, you will see that no where did I state that I disagreed with any religious practices. As a person of a minority religion, AND a person in HR, I am more in-tuned to these issues than most people realize. I am extremely sensitive to the protection of employees’ rights, but it is essential for the employee to be honest with himself and with the employer in all things. First of all, the Fire Department probably never should have hired him into a position that would require him to practice something he was uncomfortable practicing. As HR managers, and department managers are very limited in questions they are allowed to ask during an interview, it is up to the employee to disclose information that would later be construed as possible fraud. If the person knew that he would be required to operate under the policy and guidelines of wearing SCBAs, he should have made the employer aware of his circumstances BEFORE he was hired. That is as unfair to the employer as anything an employer would do to purposefully infringe on any of his personal/ religious rights. I am not completely familiar with the duties of a fireman, but I do know that SCBAs are only guaranteed to work when sealed completely. Someone who has such strong religious convictions should be conscious enough of his fellow-workers’ lives than to ask them to lower their safety standards.

  21. Debbie – are you D Davis –

    Or did you missread my post.

  22. Debbie

    You make good points. However this situation with the DCFD was by people who were already hired. Some amount of years ago this same issue was litigated brought by the DCFD and the judge ruled on the side of safety. This judge however has ruled not neccessarily for or against safety but twisted this to mean that there other assignments they can perform other than working in a hot zone. Go figure. Firefighters that are not SCBA qulified in a FD.

  23. Ed –
    Sorry – you are right – my initials ARE D Davis – ha…. ran into THAT before!!! Sorry again…

    John –
    I know that sometimes people who are already in positions feel they are somewhat protected, and to an extent they could be. However, if rules and regulations change, especially in regards to OSHA, Safety, etc, the employee must yield to that change UNLESS accommodations can be made that will allow them to work and still fall within the change limits, which this clearly would not be the case. I support religious freedom as I stated before – but, as sad as it is, sometimes accommodations should not be made in order to remain safe.

  24. Debi

    That would seem the answer I agree. However it would be fraught with potential problems. PPSCBAs are expensive. Some will try to cut corners. They will have to be maintained. There are problems inherent with SCBA’s and trained personnel must work on them. FF’s go through multiple bottles on a fire ground. Not all air bottles are compatible with all brands of SCBA. Rescue breathing may have to occur. Hook ups on Scotts are different than those on Survive Air brands. Then they must be filled and the filling apparatus may not be compatible with the self bought PPSCBA. And the list continues. When uniform protocol is not followed and an injury occurs to the employee or the public the department becomes liable.

    The answer is OSHA and NFPA requires fit testing. If the mask leaks and it is the fault of the mask, replace it. If it leaks and the employee fails to adjust whatever they must adjust then the employee cannot perform an essential job function. I would suspend them until they either become fit to wear the mask or prepare to term them if they do not.

  25. Debbie

    I quite agree. My point was that this case was more about tenured people whom frankly do know better, more than about a new candidate that got by the system without providing information about how they would perform an essential job function. There is no safety factor to using a mask that leaks as you have stated.

    Sorry if I was not clear.

  26. John –

    that is basically where I was going with my answers…. You HAVE to follow OSHA guidelines. Period. You do not wait to see if someone gets injured or killed – that is the wrong time to correct a situation. When you are aware there is a problem, you are liable when something goes wrong if you don’t take measures to correct it beforehand. That would include personnel. It is a horrible thing to have to suspend someone or let them go for personal beliefs, but sometimes things like that happen. Bottom line, if it does not conflict with EEOC, then you should err on the side of caution. Only my opinion.

  27. Debbi

    And a good opinion at that. :>)

  28. Everything nowadays violates a law or somone’s civil rights. As an attorney I see this everyday.

  29. waynespiker says:

    More than just firefighters are involved with this ruling, it also affects Technicians in industrial settings of all types, such as chem. plants, power plants, shipyards, etc. Why should these decisions be decided solely by those working as firefighters (God bless them)? Some folks are already redeployed because of other physical limitations and they still have to comply as a general rule. Further, a religion doesn’t have to be part of an organized religion, almost anyone in or out of mainline religions can claim they are being singled out, certainly their beliefs should not aso be penalized.

  30. To me, the issue is not what religion is involved…it doesn’t really matter. The issue is the safety of the employee and FEDERAL requirements regarding respirator fit tests. These are not arbitrary requirements of the employer for the sake of appearance. The employer has no choice but to comply with OSHA requirements, which should mean that employees must also comply or lose their job. I don’t have a problem with accommodating / respecting someone’s religious convictions and requirements, regardless of the religion, as long as they can still perform the essential job functions (with or without a reasonable accommodation). I can see that redeploying these employees might not be possible, considering manpower and equipment challenges. This puts the employer in a “damned if you do; damned if you don’t” position that is unconscionable. I’m sure this will be back in court, considering there is no way to comply with the conflicting requirements.

  31. Wayne Spiker says:

    Agree with RB but the issue is a challenge to OSHA so that as much as possible both sides are reasonably accomadated taking all the thinking out of it once and for all for employee and employer. Certainly after revisiting the issue satisfactorily a new job might not be such a bad idea.

  32. Sonia Micek says:

    If the job description clearly states the duties and requirements, it is up to the individual to go to the church elders and get a dispensation from the religious mandate if said exclusion is not clearly stated in their “rulebook.” This has been going on for centuries…Working on the Sabbath, missing Mass on Sundays, Fasting rules for those with medical issues, and I’m sure hazmat/firefighting requiremets as well. We have a separation of church and given that, do not go to the state to fix a religious dilemma.

  33. Moral of the Story – Don’t hire the Amish to be your firefighters!

  34. Kimmie –

    You forgot about the Rastafarians, orthodox Jews and likely more.

  35. Very interesting debate going on here…

    The comment of damned if you do and damned if you don’t is so true. There is no right choice here…only a best choice. Bottom line: The safety of personnel (bearded or not) is key and not just immediate safety – long term affects need also be considered. What are the consequences 20 years from not from working with equipment that is not properly sealed? Ladies and Gentlemen…drum roll please…ANOTHER lawsuit!
    Sonia M said it best: “We have a separation of church and given that, do not go to the state to fix a religious dilemma.”
    And Kimmie…perhaps a bit of additional education is in your best interest…comments like the one you made are fruitless and are the very reason we as employers are put in a position to defend our actions and hiring practices daily.

  36. The DC Circuit taking a broad view of employee rights under federal law is certainly not unheard of. If this case is appealed, eventually more moderate minds will overturn this decision.