NYPD’s No-Beards Policy Falls Because Of Inconsistent Administration

Fishel Litzman, a probationary officer with the New York Police Department, follows the rules and traditions of the Chabad Lubavitch Jewish community, and his Orthodox Jewish faith prohibits him from cutting or trimming his facial hair. His facial hair naturally grows out to be one inch from his skin.

NYPD’s Patrol Guide Procedure 203-07 generally prohibits police officers from growing beards but makes exceptions for undercover duties, medical conditions, and religious accommodations, although the latter two depend on written approval by the Police Surgeon or the Deputy Commissioner of the NYPD’s Office of Equal Employment Opportunity. In practice, medical and religious accommodations related to facial hair are limited to beards that are one millimeter or less in length.

When Litzman made a religious accommodation request with respect to his one-inch beard, he was repeatedly told by the City that his beard would have to be trimmed to one millimeter or less in length, and on January 24, 2012, his requested accommodation was denied. Litzman received four “Command Disciplines” regarding his beard in January and February of 2012. He submitted requests to the Police Commissioner and the Deputy Commissioner seeking an accommodation, but received no response. On June 8, 2012, Litzman, who was ranked in the top 1.3% of his Police Academy class, received a termination letter.

Litzman sued, contending the City violated his First Amendment rights to freedom of religion. A federal judge concluded that “the record shows that Litzman was terminated pursuant to a policy that is not uniformly enforced. 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. The City also admits 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.

“Interestingly, the City attempts to distinguish these officers from Litzman by arguing that the one-millimeter limit is really a proxy for an officer’s willingness to shave for respirator certification pursuant to OSHA regulations. However, the record does not reflect that respirator certification was the real ground for Litzman’s termination. Indeed, Litzman was not informed that his termination was related to certification at all. In a similar challenge to a Newark Police Department policy where medical exemptions were considered for the Department’s no-beard policy, but religious exemptions were not, the Court found that heightened scrutiny was appropriate where ‘the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.’

“To withstand strict scrutiny, the one-millimeter rule ‘must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.’ Even assuming that the goal of reaching 100% respirator certification constitutes a compelling interest, the City’s one-millimeter rule is not sufficiently narrowly tailored. The analysis of the Newark case – that a partial no-beard policy is not narrowly tailored to serve a compelling interest – is equally applicable to the respirator certification. As laudable as the NYPD’s goal of reaching the 100% certification rate is, the NYPD provides no legitimate explanation as to why Litzman must be terminated when 30% of the NYPD officers have not been certified. Although the NYPD emphasizes Litzman’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 respirator certification, does not make any distinction with respect to newly graduated officers.”

The Court found that Litzman’s termination violated his First Amendment rights, and ordered him reinstated.

Litzman v. NYPD, 2013 WL 6049066 (S.D. N.Y. 2013).