Sunday, November 17, 2013

NYPD's Grooming Rule Violates Free Exercise Rights of Orthodox Jewish Officer

Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish community, has passed required tests to be accepted into the NYPD Police Academy. According to Litzman rules and tradition based on rabbinic interpretation of Leviticus 19:27, which states; “Ye shall not round the corners of your heads, neither shalt thou mar the corners of thy beard.” Many Orthodox Jews interpret this message as to not shaving ones beard with a blade. In the past, which there was no other mean to shaving but using a razor Orthodox Jews just grew their beards out. However, in the today.s society many electric razors shave using a scissors action and some of the new electric razors which use a blade are not allowed, and thus some Orthodox men choose to shave with new technology electric razors that do not have a blade. For most people religion is based on ones interpretation of their religion sacred text. In this case, as for many other Orthodox Jewish men, he interpreted the text as a rule and tradition to grow his beard and not take a chance with other forms of blades that could potentially violate his religious practice. 

The NYPD Police Academy swore Fishel Litzman as a Probationary Officer on January 9th 2012. In the NYPD’s Patrol guidelines prohibits police officers from growing beards but makes exception for undercover duties, medical conditions, and religious accommodations, which has to be approved by the Police Surgeon or the Deputy Commissioner of the NYPD’s Office of Equal Opportunity, OEEO,. By going by these guidelines medical and religious exceptions related to facial hair, beards in this case must be one millimeter or less. Litzman sent in multiple requests to accommodate to his religious purpose of having a beard that is 1-inch in length. The NYPD denied Fishel Litzman request for an exception and was subjected to cut his beard shorter. Litzman disregarded the NYPD department request and was soon fired for not cutting his beard. When he was fired Litzman filed a suit against the NYPD that his First Amendment of free exercise was being violated.

The NYPD’s position is that it cannot accommodate Plaintiff’s one-inch beard because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator, providing the NYPD a health argument to the beard length limit. For this process the officer must go through a fit-test which is a series of seven one-minute tests to determine whether the respirator properly seals the officer’s face. Proper sealing can not be capable with facial hair, a test that is giving to all police officers on the force. The NYPD use one example in case of an emergency when officers must apply a gas mask, the respirator, to their face and having a long beard would make that process difficult leading to injuries. This example that could lead to the injuries of others as well it carried a burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer. 

 The defendant argued on different various points on how this rule was not neutral and strictly violated Litzman free exercise. The defendant made the comparison in which they agreed that the guidelines were being enforced and exceptions were giving for undercover reasons, but there are those who have beards and are not being fired based on the one-millimeter beard rule. An issue that the court agreed on by stating:

"Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. 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."

 Litzman also advises his religious leaders on what he can do if an emergency situation happens, which they told him that he could shave his beard in a life threatening situation for his life or lives of others and will not violate his religion practice. The defendant also attacks the NYPD regulation on the beard being one millimeter as they argue that it was not shown or proving to be found in the guidelines of the NYPD. Since the rule on length was strictly placed in the regulations Litzman did not violate the length issue.

The federal court ended up siding with Litzman on the NYPD infringing on his Free Exercise. I agree with the court and the defendant on this issue. Even though Litzman knew what he was getting into from the very beginning the NYPD did not present a very good case. One issue I saw that gave the defendant the right to fight against this is the exception the NYPD gives. Making it neutral to all religions making the guideline Constitutional, the issue arrived when they provided a length limit. By having a limit will give the NYPD the right to discriminate against certain people and religion practices. Such as Muslims and Orthodox Jews that has a history and practice of growing out long intensive beards. 


SC said...

I disagree with the court on the issue. I think that the NYPD made a very compelling argument as to why it would be detrimental to allow Litzman to keep his beard. While it is concerning that the NYPD does not always enforce the rule, and thus in practice might not be religiously neutral, the rule itself is religiously neutral. I therefore think that the fact that the rule isn't always being enforced is not a good reason to allow Litzman to keep his beard.

Mike Spear said...

I agree with the court ruling. I was not convinced by their argument . I feel that if an individual is willing to serve his country, state, town, etc their freedom to exercise their religion should not be infringed on. Perhaps, if their was an overwhelmingly obvious secular purpose to deny Litzman his rights one could find the NYPD's argument plausible. No such argument was formulated by the NYPD and, for that reason, justice was served.

Yessica M said...

I would have to agree with the court ruling. I just can't seem to get over the fact that NYPD specifically gives exemptions for medical conditions and religious accommodations but they still denied Litzman's request for exemption. As far as NYPD is concerned, Litzman is a legitimate Jew and refuses to shave his beard to religious reasons, therefore should be given the exemption. But he wasn't given the exemption which makes me assume that NYPD didn't find Litzman's religion legitimate. I guess I'm more curious as to their reasoning why Litzman was denied the exemption. I find it hard to believe that the health risk of having a beard is a good enough reason to deny his exemption. If it really were a big concern, then why have an exemption that cannot be applied?

Blair Kalichman said...

I agree with the court on this issue and it reminds me a little bit of my first blog post on the muslim fort greene shooter who was forced to shave his beard. In that case, he broke not only the rules of the army but overall federael regulations as well and I don't think that it is fair to deny Litzman exemption if he has been a complaint employee thus far. I also agree with everyone else who commented on this post and do not see a clear secular reason to deny Litzman the exemption.

Tyler J said...

I agree with the previous commentors - because the NYPD allows for other exemptions, it cannot restrict Litzman from having his beard. I can undrstand if this was a rule for something like the airline industry, which also restricts mustaches and forbids beards for pilots. This is a saftey issue because they need to be able to put on an oxygen mask and continue to fly the plane. As for Litzman and the NYPD, I cannot forsee an issue where , if there are exceptions for others, he would be in danger with his beard.

Gabby D. said...

I agree with the Court in this instance. I find it very compelling that the NYPD offers exemptions to the facial hair rule and they even say they offer them for religious reasons. Therefore, letting Litzman grow a beard thats a little longer than regulation for religious purposes should be allowed. I do not think there is any danger or a compelling state interest for the government to stop Litzman from growing his beard and I think the plaintiff's right to free exercise clearly outweighs the NYPD regulation.