Race Discrimination Lawsuit Arising Out Of No-Beards Policy Allowed To Proceed

Amon Simon is an African-American male with a permanent form of the skin condition pseudofolliculitis barbae (PFB). Simon joined the Harris County, Texas Sheriff’s Office in February 2004 as a detention officer. In October 2005, Simon graduated from the Sheriff’s Office Academy and returned to work as a deputy at the Harris County jail.

In 2005, the Department had a no-beards policy that allowed an exception if the employee could demonstrate to the satisfaction of his bureau commander that he suffered from a condition that could only be remedied by allowing his beard to grow. In March 2006, Simon began following his treating dermatologist’s recommendation to maintain a “shadow” beard that resembles stubble due to his severe, chronic PFB. That same month, the Department amended its policy to provide that an individual suffering from PFB must be placed on “transitional duty.” The policy expressly noted that transitional duty was not intended to be permanent, and presumed that an individual with PFB would be able to shave after treatment.

In January 2007, Simon began patrol training in District III, a predominantly minority, high crime area. Simon’s supervisor was aware of his facial hair, and determined that his appearance was acceptable. In June 2007, Simon began working the evening shift in District IV, a primarily Caucasian suburb in which then-Sheriff Tommy Thomas lived. Soon thereafter, he was told by his supervisor that his facial hair was not in compliance with policy.

Simon was placed on transitional duty on June 14, 2007. While on transitional duty, he was prohibited from wearing his uniform and from openly carrying his weapon; he was also precluded from working overtime. Simon’s initial transitional duty assignment was a desk job, but he was quickly transferred to the property room. Property room duties include taking out trash, sweeping and cleaning up, and performing other manual labor.

Simon responded to his assignment by filing a federal court lawsuit contending, among other things, that the no-beards policy had a disparate impact on African-American men. The Department moved to dismiss the lawsuit, arguing that it had a business necessity for the rule because many of its personnel are “first responders” who are required to wear properly fitted respirators in the event of a crisis such as a terrorist attack.

A federal court allowed Simon’s lawsuit to proceed. The Court noted that “there is no doubt that the challenged grooming policy has a disparate impact on African-American men. The parties have stipulated that Simon has a permanent form of PFB that prevents him from close shaving; that this condition primarily affects African-American men; and the condition is common, affecting somewhere between ten and 60% of African-American men.

“The issue then is whether the County can meet its burden to prove a business necessity for the policy. The Department ordered Millennium Respirators in May 2004, intending to issue one to all patrol officers designated as ‘first responders’ in the event of crisis. However, not all deputy positions are designated as ‘first responders,’ and not all those in such designated positions have been issued such a respirator. These facts tend to undermine the necessity argument. Moreover, the Department has presented no expert testimony as to the business necessity for the no-beard policy.”

The Court denied the County’s motion for summary judgment, and ordered the case set for trial.

Simon v. Harris County Sheriff’s Dept., 2010 WL 1463459 (S.D. Tex. 2010).

This article appears in the June 2010 issue