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

In Litzman v. New York City Police Department, (SD NY, Nov. 15, 2013), Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish movement, was accepted into the NYPD Police Academy and sworn in as a probationary police officer. He sued when his request for a religious accommodation to allow him to wear a one-inch long beard was denied and he was fired for continuing to wear his beard. NYPD policy allowed for medical and religious exceptions to the Department's no-beard rule, but only for beards that do not exceed one millimeter in length. A New York federal district court held that while the police department had not violated Title VII of the 1964 Civil Rights Act by failing to accommodate Litzman's religious exercise, it did violate his 1st Amendment free exercise rights and the New York City Human Rights Law.

The NYPD prevailed under Title VII because it carried its 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.  NYPD failed to meet that test. Analyzing plaintiff's 1st Amendment free exercise claim, the court concluded that strict scrutiny should be applied:

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.

New York Daily News reports on the decision.

5th Circuit Remands Sikh's RFRA Challenge To Ban On Kirpan In Federal Building

In Tagore v. United States, (5th Cir., Nov. 13, 2013), the U.S. 5th Circuit Court of Appeals rejected a Title VII religious discrimination claim by a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. Federal law (18 USC Sec. 930) prohibits weapons with blades over 2.5 inches long in federal building. The court said that: "An employer need not accommodate an employee’s religious practice by violating other laws."

However the court remanded for reconsideration of plaintiff's RFRA claim in light of a Policy Directive issued by the Federal Protective Service after the case concluded in the district court. (See prior posting.) That Directive permits granting of exemptions in federal buildings for Sikh articles of faith, and thus possibly undercuts the government's argument regarding the need for uniform application of the weapons ban.  The appeals court also held that, contrary to the district court's conclusion, plaintiff had created a genuine issue of material fact as to her sincere religious belief in wearing a 3-inch bladed kirpan.  [Thanks to Blog From the Capital for the lead.]