Religious Discrimination Or Splitting Hairs?

Religious Discrimination Or Splitting Hairs?

Fired chasidic cop and NYPD entangled in dispute over beard-trimming requirement.

The New York City Police Department bars officers from sporting beards except to accommodate medical or religious requests — and even then the beard can be no longer than one millimeter in length.

A chasidic Jew who was fired from the police academy in June 2012 because he refused to trim his beard is set to challenge that decision in a trial that begins next month. To avoid it, the dismissed probationary officer, Fishel Litzman, told Manhattan Federal Judge Harold Baer Jr., that the facts are undisputed and asked that he rule that the department violated his civil rights.

In court papers and in an oral argument, the city argued that although the police department does make accommodations for medical and religious reasons, it could not grant Litzman one because “his religious belief that he can never shave, trim or cut his beard” means he cannot comply with the one-millimeter rule.

The rule was put in place, the city said, because the department’s counterterrorism and emergency-preparedness strategy requires that officers “be willing to shave their beards completely, at least on occasion, for the purpose of safely using respirators that rely on a seal against the user’s face for effectiveness.”

It added that Litzman’s “request to grow a full beard that can never be shaved is not a reasonable accommodation, and would impose undue hardship upon NYPD.”

But in his reply, Litzman’s lawyer, Nathan Lewin, argued that his client did not say he would never shave his beard in an emergency, just not for training purposes.

“The Orthodox Jewish observance followed by adherents to the Chabad movement that bars any trimming of a beard is qualified, under Jewish religious law, by the principle of ‘pikuach nefesh’ – saving a life,” Lewin wrote. “The plaintiff [Litzman] has never said that he would refuse to shave his beard if it became necessary, in a life-threatening situation, for him to use a … respirator that cannot be worn with facial hair.”

Lewin submitted with his court papers a sworn statement from Litzman declaring his readiness to shave his beard in such an emergency. In addition, he submitted supporting statements about the religious principle of saving a life from two rabbis whose letters were submitted to the department when Litzman first requested the religious accommodation.

The city claimed Litzman, who Lewin said was at the top of his class of more than 800, was terminated because of his failure to trim his beard during training so he could be certified in the use of the MSA Millennium respirator.

It noted that the department must assume when deploying officers in an emergency that they are all equally trained “because it will not have the luxury of time to ascertain whether any of the officers selected for deployment may have been exempted from” the certification requirement. Were that not the case, the “flexibility of the overall police force to respond to emergency situations would be compromised.”

The city added that it explored alternatives to the MSA Millennium respirator but was unable to identify any that was both “functionally equivalent” and could be worn with facial hair.

Lewin insisted that his client could learn to become proficient in the use of the respirator without being certified in its use.

“Actual ability to use the MSA Millennium respirator, not bare certification of the ability to don it, is all that the NYPD needs to fully fulfill its mission,” he said.

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