Tuesday, June 14, 2005

A federal judge yesterday ordered the D.C. fire department to allow three bearded Muslim firefighters to serve on full duty until Aug. 1, when he expects to decide whether the safety issues outweigh the men’s claims that shaving would violate their religious rights.

U.S. District Judge James Robertson told an attorney for the city and an attorney for the American Civil Liberties Union that he would decide the case after a one-day hearing Aug. 1 that will examine whether facial hair puts firefighters at risk. The case was first filed in 2001.

“This is definitely a victory, even though it is temporary,” said plaintiff Hassan A. Umrani, a city firefighter who has worn a full beard since his first day on the job 16 years ago.

Fire Chief Adrian H. Thompson last month ordered that all firefighters be cleanshaven so that they could be tested to determine whether their protective masks properly protect their faces.

Arthur Spitzer, an attorney for the D.C. chapter of the ACLU, said the order violated a preliminary injunction issued in a 2001 case in which six firefighters challenged the department on the point the policy violated their religious freedom.

The case was never settled, and the preliminary injunction remains in place.

Yesterday’s hearing was to determine whether Chief Thompson violated the injunction by issuing last month’s order.

Chief Thompson declined to discuss the order last week, citing the ongoing litigation.

Robert Utiger, a lawyer with the D.C. Attorney General’s Office, argued on behalf of the fire department. He conceded in court yesterday that in most firefighting scenarios, a positive-pressurized mask that adheres to the face is sufficient to protect even a bearded firefighter.

But he said that in a chemical or biological incident during which firefighters wear the same mask attached to a filter instead of an oxygen tank, the mask is not pressurized and a poor fit could result in injury.

“You’re probably not going to drop dead in a fire if you have a little bit of a beard and a positive pressure mask,” Mr. Utiger said. “That’s not what we’re worried about. We’re worried about having to go into a contaminated situation.”

He said fire officials are concerned about the safety of the bearded firefighters, their colleagues and citizens depending on them to perform critical functions during emergencies.

Judge Robertson said he understood the concerns but asked whether the grooming policy was “overkill.” He asked how often firefighters are given stress tests and physicals to determine their health and physical fitness.

“If you are going to go this far with the face masks, how far are you going with all the other intuitive causes for people possibly going out?” Judge Robertson said.

Mr. Spitzer argued that in the catastrophic situation Mr. Utiger described, the filtered negative-pressurized mask would not provide much protection for a bearded firefighter or a cleanshaven firefighter.

“I don’t think the fire department is going to be able to prove they are doing all this for safety,” he said.

Yesterday’s motion was filed on behalf of three Muslim firefighters among the six original plaintiffs. Four of the men were Muslims, one was Rastafarian, and another was Nazarite.

Two have since left the fire department for unrelated reasons. Three of the remaining four have beards that violate the grooming policy. Another man violated the policy for wearing his hair in long dreadlocks.

Since Chief Thompson ordered enforcement of the grooming policy, three other firefighters have filed for exemptions based on religious objections.

Mr. Umrani would not say what he would do if the judge rules that he must shave. “We’ll just have to deal with that when it comes,” he said.

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