Federal Court Upholds Atlantic City Fire’s No-Beard Rule

The US District Court for the District of New Jersey has upheld the Atlantic City Fire Department’s no-beard policy. The policy had been challenged by a city firefighter, Alexander Smith, on First Amendment, religious, and equal protection grounds. Smith also claims he had been retaliated against for requesting an accommodation.

Smith was assigned to the air supply unit as an Air Mask Technician in 2015. In 2018 he sought permission to grow a beard for religious reasons. His request was denied, as were various requests for accommodations. He filed suit in federal court in 2019.

Earlier this year, the city moved for summary judgment on all counts. On Tuesday, Judge Christine P. O’Hearn granted the city’s request. Her initial focus was to determine the proper level of review for Smith’s constitutional and religious discrimination claims: strict scrutiny, intermediate review, or rational basis review.  

  • The level of scrutiny applied turns on the nature of the challenged action.
  • If the action is neutral and generally applicable, it burdens religious conduct only incidentally and rational basis review is applied.
  • A government action is not neutral “if it discriminates against religiously motivated conduct,” and is not generally applicable if it prohibits “particular conduct only or primarily when religiously motivated.”
  • To determine if a policy is facially neutral, a court must look not only at its text, but whether it is enforced “on a religion-neutral basis.”
  • If enforcement of an otherwise facially neutral law or policy is dependent on the Government’s “evaluation of the reasons underlying a violator’s conduct,” the law or policy cannot be considered neutral and strict scrutiny applies.
  • Defendants submit that Plaintiff’s free exercise claims are subject to rational basis review because the ACFD’s grooming policy “imposes the same limitations on every comparable firefighter, and does not provide for any categorical exemptions to the no-beard rule.”
  • Plaintiff disagrees and argues that strict scrutiny is required.
  • Plaintiff’s strict scrutiny argument is unavailing. Under Third Circuit precedent, the Court could only subject the grooming policy to strict scrutiny if it found the policy lacked facial neutrality.
  • The Court declines to do so. The policy makes no reference to religion or religious beliefs. It is therefore neutral on its face.
  • The policy is also enforced “on a religion-neutral basis.”
  • By denying all requests for exemption, Defendants have not engaged in any “evaluation of the reasons underlying a violator’s conduct,” which would require application of intermediate scrutiny.
  • Regardless of the motivation behind a request for exemption, Defendants have denied all requests, including against those seeking medical, non-religious exemptions to the policy.
  • For this reason, governmental no-beard policies are frequently found to be neutral and generally applicable when imposed uniformly.
  • Defendants submit that the grooming policy advances the government’s legitimate objectives of (1) firefighter safety and (2) following state and federal regulations which prohibit facial hair.
  • Safety is a well-recognized legitimate government objective.
  • And a fire department’s ability to comply with state and federal regulations is certainly a legitimate government objective.
  • The grooming policy is rationally related to these objectives.
  • First, and most obviously, the policy ensures that the ACFD complies with various state and federal regulations that prohibit devices like SCBAs to be worn by those with facial hair.
  • Second, there is no dispute that PEOSH and OSHA find that an ill-fitting SCBA creates a safety risk not only to the firefighter wearing it, but also to fellow firefighters who may be tasked with rescuing those with an ill-fitted mask.
  • Firefighter safety is put at risk when anything inhibits the seal of an SCBA, including facial hair.
  • This is contemplated in the text of the policy which provides that “[f]acial hair of any type shall not interfere with the seal of SCBA face piece.”
  • Therefore, the grooming policy prohibiting facial hair is rationally related to the government’s legitimate objective of firefighter safety.
  • Failure to Accommodate
  • Title VII prohibits religious discrimination in the workplace.
  • Under 42 U.S.C. § 2000e(j), an employer is required to make reasonable accommodations for an employee’s religious beliefs and practices unless doing so would create an “undue hardship” for the employer.
  • Defendants inquired with their SCBA vendor and a separate vendor to determine whether there existed a mask that could be safely worn with facial hair.
  • None does – and that is not disputed.
  • Thus, Defendants have shown that they “made a good-faith effort to reasonably accommodate [Plaintiff’s] religious belief.”
  • Granting Plaintiff’s request for accommodation would come at a substantial non-economic cost for the ACFD.
  • It would mean that, going forward, Plaintiff would never be able to don an SCBA without creating substantial risk to himself and, by extension, his fellow firefighters.
  • Having one member of the ACFD who, in perpetuity, would be unable to don an SCBA safely would work an undue hardship on the ACFD’s ability to conduct the typical activities of a fire department.
  • Such restrictions on manpower would also jeopardize the safety of the general public.
  • Though Plaintiff submits that his role as an Air Mask Technician would never require him to wear an SCBA, that contention is belied by the record of undisputed material fact.
  • Even though Plaintiff was already in his current role in the Fire Shop in 2020, he was nonetheless ordered to perform fire suppression duties that year and refused to do so.
  • Regardless of the reasons for Plaintiff’s refusal, the fact remains that he has at least on one occasion been ordered to perform fire suppression duties- despite being an Air Mask Technician-and could be called on to do so again, as is the reality of the duty of all members of the ACFD.
  • Therefore, Plaintiff’s contentions regarding the responsibilities and duties of Fire Shop employees are belied by undisputed facts in the record.
  • The fact that it may be an infrequent responsibility or duty does not negate that being able to safely respond to fire emergencies and provide a response that does not risk the safety of his fellow firefighters, the public, or himself, is an essential duty of a firefighter.
  • The Court is satisfied that accommodating Plaintiff’s religious belief would work an undue hardship upon Defendants.
  • Retaliation
  • Plaintiff’s Complaint does not specify how Defendants retaliated against him.
  • When asked this question at his deposition, Plaintiff responded three times that Defendants retaliated against him only by denying his request for religious exemption from the grooming policy.
  • And now, for the first time in his opposition, Plaintiff alleges that Defendants’ threatened suspension for showing up to work with a beard also constituted retaliation.
  • Plaintiff does not dispute or attempt to recant his deposition testimony.
  • A Plaintiff’s opposition to summary judgment that “is in complete contrast to his deposition testimony” is “insufficient to withstand a motion for summary judgment.”
  • Further, even if the Court were to consider Plaintiff’s newly asserted retaliation allegations, Defendants have a “legitimate, non-retaliatory reason for [their] conduct.”
  • Denying Plaintiff’s exemption request, charging him with insubordination, and threatening to suspend him for violating the grooming policy all further Defendants’ legitimate government interest in safety and ability to enforce the grooming policy, the text and enforcement of which is constitutional and furthers the ACFD’s objective safety interests.
  • Plaintiff has provided no evidence that Defendants’ “proffered explanation was false, and that retaliation was the real reason for the adverse employment action.”
  • Thus, Defendants are entitled to summary judgment on Counts Three and Four.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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