Employment Law Daily Denial of police officer’s request for religious beard exemption subject to strict scrutiny
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Wednesday, August 28, 2019

Denial of police officer’s request for religious beard exemption subject to strict scrutiny

By Harold S. Berman J.D.

The officer asserted that a large part of his Christian faith includes “the strength that comes from wearing beards as set forth throughout the Christian Bible.”

A police officer who claimed his Christian beliefs compelled him to have a beard can proceed with his Constitutional free exercise of religion and statutory discrimination claims against the police department and several superiors, a federal district court in Louisiana ruled. The court partially denied both the officer’s and the department’s summary judgment motions, finding that the department’s denial of his request was subject to strict scrutiny because it permitted beards for secular medical reasons but not for religious reasons. However, the officer’s claims could not be determined on summary judgment because the sincerity of his underlying religious beliefs was disputed (Cunningham v. City of Shreveport, August 22, 2019, Foote, E.).

Request for religious beard exemption. The employee was a captain in the Shreveport police department. In late December 2016, he was out on sick leave for several months. During that time, he grew a beard, and found that doing so strengthened his Christian faith and his ability to express his religious views to others. He believed wearing a beard was “set forth in the Christian Bible.”

In April 2017, shortly before the captain was to return to work, he inquired about obtaining a religious exemption to the police department’s no-beard policy and submitted a written request.

Delayed return to work. In late April, HR directed him to undergo a fitness-for-duty exam and told him he would not return to work as scheduled on May 1. He was told the exam and delayed return to work was because of his back pain and that his beard exemption had not been approved. He responded that he was not experiencing back pain.

The captain underwent the exam and was cleared to return to work. Nevertheless, the department placed him on leave without providing a reason. The captain asked in writing for an explanation for his extended leave, stating he believed it was because of his beard exemption request. He received no response, and the department never offered a reason for placing him on leave.

Beard request denied. In late June, the captain was informed that his beard exemption request was denied due to safety concerns. When he inquired of his superiors a few days later as to what safety interests prevented him from having a beard given that exemptions were given for medical reasons, he was told that his request still was denied.

The captain’s attorney then wrote to the police chief, outlining the alleged harassment the captain suffered after submitting and being denied his religious exemption request, and contending that such denial violated the U.S. and Louisiana Constitutions, plus Louisiana law. The attorney’s letter also asked the police chief to immediately tell the captain he could return to work. The chief did not respond.

Declared unfit for duty. The captain reported for work on June 30 and was advised he was unfit for duty because of his beard. He was then placed on departmental leave by the Internal Affairs Bureau. He was told he needed to call the Bureau every day, which he alleged was not standard departmental leave procedure. He was not given a reason for the departmental leave, and his weapon and commission card were taken from him.

The captain submitted his retirement papers, which he believed he was forced to do because of the department’s actions and to avoid the embarrassment of his departmental leave being made public. He then sued the city and various police department officials alleging violation of his free exercise of religion under the U.S. and Louisiana Constitutions, and religious discrimination under Louisiana statute. Both parties moved for partial summary judgment.

Claims against assistant and deputy. The court rejected the city’s argument that the assistant and deputy police chiefs could not be liable for the alleged violations of the captain’s constitutional rights because the police chief was the only individual who caused the violation. Rather, it was factually disputed whether the deputy and assistant were personally involved in the alleged constitutional violation to mean that liability could attached under Section 1983. Both had told the officer his request was denied. Even if the police chief made the ultimate decision to deny the captain’s beard request, the deputy and assistant likely had a degree of personal involvement in the denial.

Strict scrutiny of constitutional claims. The court agreed with the captain’s argument that the department’s no-beard policy should be subject to strict judicial scrutiny because it permitted medical but not religious exemptions. Although the Fifth Circuit had not yet addressed this issue, the court relied on Third Circuit precedent, finding that the department’s no-beard policy did allow for exemptions for secular reasons but did not consider exemptions for religious reasons, and the department had previously granted medical waivers for beards.

Although the department claimed it did not permit beards for safety reasons and wanted to promote a uniform appearance, the police chief admitted that a beard permitted for medical reasons would present the same safety and uniformity issues. By permitting medical exemptions, the department made a value judgment that secular medical reasons were sufficiently important to negate its interest in no beards, but religious motivations were not.

Sincerity of religious beliefs. Despite adopting a strict scrutiny standard, the court declined to grant summary judgment for the captain on his free exercise claims because there were disputed factual issues concerning the sincerity of his beliefs that prompted his beard growth, which were best determined by a factfinder. The captain made statements in his deposition suggesting he believed his Christian faith required him to grow a beard, yet he made other statements that suggested a beard merely was a personal preference.

The factual dispute concerning the sincerity of his religious beliefs similarly prevented the court from granting summary judgment on his religious discrimination claims under Louisiana statute and his constructive discharge claims, as both hinged on the sincerity of his religious beliefs.

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