Atlantic City Fire Department
PHILADELPHIA - A New Jersey firefighter who believes beards are important to his Christianity will be able to push his lawsuit against Atlantic City after it threatened to suspend him if he did not shave.
Four of Alexander Smith's claims were dismissed by a federal district court, but the U.S. Court of Appeals for the Third Circuit on May 30 revived two of them. That will allow attorneys at the First Liberty Institute and the Religious Freedom Clinic at Harvard Law School to try again on claims Atlantic City violated the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act.
It also reverses denial of Smith's motion for a preliminary injunction against retaliation from Atlantic City.
"The District Court concluded that, because the City 'made a good-faith effort to reasonably accommodate' Smith, it was not liable regardless of undue hardship," Judge David Porter wrote for a somewhat divided three-judge panel.
"That is a misreading of Title VII and precedent. Search the text of the religious-accommodations clause, and the phrase 'good faith' is nowhere to be found."
Smith is a firefighter who doesn't normally fight fires. Instead, he is Atlantic City's only Air Mask Technician.
At issue are those air masks - self-contained breathing apparatuses (SCBAs). They form a seal on a firefighter's face and pump clean air and don't work as well when their seal becomes damaged or loose.
Atlantic City orders firefighters to have neatly trimmed sideburns and mustaches, but not beards. Firefighters can disobey this if they choose to be personally responsible, and administrative employees are not subject to the requirements.
Smith hasn't fought a fire in 10 years, though he is on site in order to safely remove SCBAs and switch air tanks. His beard, he says, emulates Jesus Christ and biblical prophets and is a symbol of man's natural role as "head and leader."
He's also pastor "of a vibrant local congregation," his appeals brief says, who believes he has a religious obligation to wear a beard.
He grew the beard in 2018 and asked for an accommodation, though neither side expressed what that would mean. His request was denied and he was ordered to shave or be suspended without pay.
He filed suit in 2019. While the suit was pending, Hurricane Isaias impacted Atlantic City, which ordered Smith to engage in fire suppression even though he had previously been barred from doing so as the Air Mask Technician.
It was the first time in 31 years someone with his job was ordered to do so, even though the city now admits there were no fires at all. When he refused out of fear for his and others' safety, because he hadn't fought a fire in years, Smith was charged with insubordination and suspended for 40 days.
The Third Circuit was found to not have done everything it could to accommodate Smith’s free-exercise rights.
"The City could remove Smith from fire suppression duty as it did before 2020 or reclassify him as a civilian who is not subject to the SCBA and grooming policies," Porter wrote.
"It could, as a simple fix, at least try and fit test Smith with facial hair to see if his facial hair, at any length, would interfere with the SCBBA to a point that creates the risk of air leakage that the City fears.
"There are likely more solutions than these three, but 'so long as the government can achieve its interests in a manner that does not burden religion, it must do so.'"
