The US Court of Appeals for the District of Columbia has overturned a decision by a district court that refused to find the District of Columbia Fire Department in contempt for instituting a no beard rule. The procedural history of the case is complicated, and the court did not rule on the merits of the case.
The issue goes back to a lawsuit originally filed in 2005 challenging the department’s no beard rule as violating the Religious Freedom Restoration Act (RFRA). City attorneys argued that OSHA and NFPA rules prohibited hair at the respirator interface. The firefighters countered that positive pressure SCBA adequately addressed concerns over facial hair.
Rather than rebut the issues raised by the firefighters with scientific data and/or regulatory mandates, city attorneys conceded the positive pressure issue but pointed to the fact that after 9-11, all DC firefighters and police officers had been issued negative pressure chem-bio filter face masks. Strategically, they believed that the negative pressure masks made for a stronger justification of the no beard rule, and that it would end the case quickly. They were gravely mistaken.
As the case proceeded, the firefighters were able to establish that firefighters never had to actually wear the negative pressure masks, and suggested it was a pretext for discriminating against firefighters who wore beards for religious or medical reasons. As a result, in 2007 the court issued a permanent injunction against enforcement of the no beard rule.
Fast forward to 2020, when the department sought to re-implement the no beard rule as part of the COVID related safety precautions. The department issued the new no-beard policy, but failed to ask the court to rescind the 2007 injunction. In 2022, four members of the department, Calvert Potter, Steven Chasin, Jasper Sterling, and Hassan Umrani, sought to have the department held in contempt for violating the 2007 injunction.
The district court upheld the no beard rule, prompting the firefighters to appeal. In sending the case back to the district court, the Court of Appeals did not discuss the ongoing validity of the 2007 injunction that clearly violates OSHA requirements, or the merits of the city’s concerns related to firefighter safety. Rather, the Court of Appeals directed the District Court to address the more narrow issue of whether the city violated the 2007 injunction, and whether the city had a recognizable defense to any violation that did occur.
Here is a copy of the decision. A word of caution is in order here, because headlines can be deceiving: This decision does not stand for the proposition that a no beard rule violates the religious freedom of firefighters, or constitutes unlawful discrimination. Rather, the Court of Appeals decision stands for the proposition that anyone (a person or a government agency) that is subject to a court order, must comply with that court order. If compliance is somehow no longer advisable – the proper recourse is to go back to the court that issued the order and get the injunction rescinded or modified. Ignoring the order – even if it is wrong, even if it is out dated, and even if complying with it violates clearly established federal law, is inadvisable.
Here is a copy of the decision:
