Written by Don Byrd
A Jewish police officer’s Free Exercise rights were violated when he was fired by the New York Police Department for refusing to shave his beard in conformity with regulations. Fishel Litzman adheres to the Orthodox Jewish tradition that prohibits him from cutting his beard. While the NYPD provides religious accommodations to its grooming requirement, the apparently unwritten policy allows beards no longer than 1 millimeter. Litzman was denied an accommodation, and ultimately fired after he refused to shave.
In a ruling Friday, a trial court judge ruled the action violated Litzman’s religious freedom rights under the First Amendment. Here are some highlights from the opinion which you can read here (PDF):
Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The record shows that the NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals. Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards. Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate.
The NYPD argues that certification for the use of emergency respirators (CBRN) serves a purpose – fighting counter-terrorism – that is compelling enough to overcome that high level of scrutiny. The department now seeks 100% certification rates in its new graduating classes. The judge was not convinced.
As laudable as the NYPD’s goal of reaching the 100% CBRN Certification rate is, the NYPD provides no legitimate explanation as to why Plaintiff must be terminated when 30% of the NYPD officers have not been certified. Although the NYPD emphasizes Plaintiff’s status as a new graduate who is more likely to be deployed to emergency areas, Operations Order No. 44, which provides a medical accommodation to the CBRN Certification, does not make any distinction with respect to newly graduated officers.
Importantly, if NYPD didn’t offer so many exemptions and apply the rule so unevenly, the court would have held the rule to a lower constitutional standard.
