- The Washington Times - Sunday, June 5, 2005

The D.C. Fire and EMS Department is making another attempt to enforce a grooming policy on facial hair that a federal judge in 2001 ruled was a violation of firefighters’ First Amendment rights.

The enforcement will begin with a test scheduled for tomorrow, during which fire officials will test firefighters to make sure the face masks on their breathing gear have a proper fit.

According to a special order issued May 25 by Chief Adrian H. Thompson, all firefighters must be beardless at the time of the test because facial hair can interfere with the mask’s ability to seal to the face.

“This has very little to do with grooming and much, much more to do with safety,” said Alan Etter, a fire department spokesman. The regulation, which has been on the books since 1997, allows neatly-trimmed sideburns and mustaches if they do not interfere with the fit of the mask.

Lt. Ray Sneed, president of the D.C. Firefighters Association, estimated that about 800 firefighters have worn beards, which he said were permitted for 12 years as long as they were trimmed to a quarter of an inch.

“In all that time, there has not been a single injury or accident that resulted from a firefighter having facial hair,” he said. “I would be aware if there had been one.”

In 2001, the last time fire officials attempted to enforce the regulation, six firefighters represented by the American Civil Liberties Union challenged the department in U.S. District Court on the grounds the policy violated their religious freedom.

A federal judge granted a preliminary injunction preventing the department from placing the men on administrative leave, saying he recognized the safety concerns, but ruling that the policy “very clearly” violates the men’s religious freedom.

Four of the men were Muslims, one was Rastafarian, and another was Nazarite.

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

Fire officials said that when testing begins tomorrow, the department will not provide exemptions for religious reasons. If firefighters do not want to shave their beards for such reasons, they must report to fire officials their religion and the specific beliefs or teachings the practice would violate.

Unlike four years ago, when firefighters who violated the policy were suspended, men who will not shave for religious reasons will be reassigned to administrative duties until the legal questions are settled. If the court decides to overturn the injunction, firefighters in violation of the regulation for any reason will be recommended for termination after four consecutive days of violating the grooming policy.

Arthur Spitzer, legal counsel for the ACLU’s D.C. chapter, said reassigning firefighters to administrative duty is a violation of the injunction and expects to file court papers next week to prohibit his clients from being reassigned.

Lt. Sneed said the grooming policy is not a safety issue because the masks are pressurized, so facial hair will not interfere with the seal.

“No one is more concerned about the safety of my members than I am,” said Lt. Sneed, who plans to report to work tomorrow with his short beard intact.

While standards set by the federal Occupational Safety and Health Administration call for persons working in breathing apparatus to be clean shaven, Lt. Sneed says there is no proof that the mask makes a better seal on a beardless face.

Mr. Spitzer agreed.

“If they can prove that this is really about safety, then they will win,” he said. “But they have to prove it.”

Lt. Sneed also said a number of firefighters have a skin condition called pseudofolliculitis barbae, which occurs when curly hairs grow back into the skin and cause inflammation. The condition often occurs in black men.

If a firefighter claims to have the condition, they will be sent to the department’s clinic for a diagnosis and advice on treatment. They will have to use sick leave until the condition is treated and they can comply with the regulation.

Mr. Spitzer said the department’s position in that case would have a “disparate impact” on black firefighters that could lead to a legal challenge based on racial discrimination.

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