Four Firefighters Seek to Hold DCFEMS in Contempt Over No-Beard Rule

Four members of the District of Columbia Fire and Emergency Medical Services are asking a federal court to reopen two religious discrimination cases dating back to 2001 and 2005 and find the city in contempt for violating a permanent injunction by enforcing the no beard requirement. Steven Chasin, Calvert Potter, Jasper Sterling, and Hassan Umrani filed the action earlier this month in US District Court for the District of Columbia.

The firefighters contend that the city’s efforts to enforce the no beard requirement in 2019-2020 violated a permanent injunction in the two cases, which were consolidated. The permanent injunction was issued on October 29, 2007, and states in part:

• That the defendant and its officials, agents, and employees, are PERMANENTLY ENJOINED from enforcing the facial hair provisions of Special Order 20, Series 2005, against the plaintiffs.

The new language prohibiting facial hair was contained in Safety Operations Bulletin No. 10, which states in part:

• Employees are not permitted to have: [1] Facial hair that comes between the sealing surface of the face piece and the face; [2] Facial hair that interferes with the valve function; or [3] Any condition that interferes with the face-to-face piece seal or valve function.

According to the plaintiffs, the above quoted language from Safety Operations Bulletin No. 10 is virtually identical with the language of Special Order 20. Quoting from the plaintiffs’ memorandum:

• The revisions to the Department’s facial hair policy set forth in Bulletin No. 10 were announced to Department personnel on February 12, 2020 via General Order No. 6.
• General Order No. 6 explains that the policy “intends to protect and enhance the safety of all members and thereby support our ability to provide efficient fire and emergency medical services to the residents and visitors of the District of Columbia,” materially the same interests that Defendant previously offered when it unsuccessfully sought to justify applying its clean-shave preference to Plaintiffs before this Court in the prior litigation.
• Neither Bulletin No. 10 nor General Order 6 made any mention of COVID-19 or any other public health emergency as the reason this new policy was implemented. Pursuant to General Order 6, enforcement of the provisions of Bulletin No. 10 was initially scheduled to begin on April 5, 2020.
• Ultimately, the Department moved this implementation date forward to March 15, 2020 via Special Order No. 55.
• Unlike any of the prior materials issued by the Department, Special Order 55 stated that “[t]he progression of the novel Coronavirus (COVID-19) necessitates the increased use of negative-pressure filtering face piece respirators, including N-95 masks and air-purifying respirators,” and claimed that “[t]he presence of facial hair interferes with the mask’s seal . . . .”
• The Department began enforcing its new facial hair policy against firefighters and paramedics—including Plaintiffs—in March 2020.

As a result of the March, 2020 order, the four firefighter-plaintiffs were reassigned to “logistical positions within the department” and claim to have suffered economic losses.

From a procedural perspective, this is NOT a new lawsuit (despite what those in the media have reported). The firefighters are seeking to reopen two cases, Potter v. DC and Chasin v. DC, and ask the court to find the city in contempt of a court order that was issued after the cases were consolidated. Here is a copy of the court filings, all 99 pages worth:

Recall the Second Circuit’s recent ruling upholding a new FDNY’s no-beard requirement based upon the need to comply with OSHA requirements. The FDNY case involved disability and race discrimination claims. More on that decision.