SDNY Holds That NYPD Failed to Reasonably Accommodate Jewish Officer’s Religious Beliefs

This week in Litzman v. City of New York, Southern District of New York Judge Harold Baer largely sided with plaintiff, Probationary New York City Police Officer Fishel Litzman, in his lawsuit alleging religious discrimination.

Plaintiff 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.  He requested a religious accommodation that would have permitted him to have a one-inch beard. NYPD procedures generally prohibit police officers from growing beards, but apparently permit an exception for one-millimeter long beards for medical and religious reasons.

Defendants argued that allowing a “one-inch beard” accommodation was not possible, “because newly graduated police officers must shave at least once each year to be certified to use an MSA Millennium model respirator,” which cannot be sealed against the face if facial hair is present.

First, the court granted plaintiff’s summary judgment motion on his claims under 42 U.S.C. section 1983 and the Free Exercise Clause of the First Amendment to the U.S. Constitution.

The court applied “strict scrutiny” – the most stringent standard of review – in light of “evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion.”  In order 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.”  It did not:

As laudable as the NYPD’s goal of reaching the 100% CBRN Certification rate is, the NYPD provides no legitimate explanation as to why Plaintiff must be terminated when 30% of the NYPD officers have not been certified. Although the NYPD emphasizes Plaintiff’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 CBRN Certification, does not make any distinction with respect to newly graduated officers.

Defendants also argue that in an emergency situation, NYPD officers, particularly recent Police Academy graduates who are expected to be first responders, ought be interchangeable with other recent graduates. Defendants assert that the Plaintiff will not be interchangeable with a member of the police force who is clean-shaven and can immediately respond to an emergency requiring use of an MSA Model Respirator. While this is likely so, it does not explain how an officer with a one-millimeter beard, in compliance with NYPD policy for new Police Academy graduates, would be interchangeable with other clean-shaven officers.  Those ‘one-millimeter officers,’ just like the Plaintiff, would be equally unable to use the respirator until they have shaved. …

[Defendants failed to] provide a legitimate explanation as to why the one-millimeter rule is enforced unevenly throughout the department, i.e. why Plaintiff was terminated when other officers who have beards longer than one millimeter remain on the force without any exemption or why some temporary exemptions are permitted.

Therefore, since defendants failed to satisfy strict scrutiny, the court awarded summary judgment to plaintiff on his Section 1983 and New York State Constitutional claims. The court noted that the New York State Constitution is “more protective of religious exercise” than is the Federal Constitution.

Second, the court dismissed plaintiff’s due process claims under the Fifth and Fourteenth Amendments to the U.S. Constitution:

Defendants are only required to articulate a legitimate government interest to which its regulation is rationally related. Notably, the Supreme Court instructs that [c]hoice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State’s police power. Defendants state that the one-millimeter exception strikes an important balance between providing medical and religious accommodations and maintaining the desired uniformity of the officers’ neat and professional appearance. They need say no more.

Third, the court rejected plaintiff’s “reasonable accommodation” claim under Title VII of the Civil Rights Act of 1964.  Title VII

prohibits discrimination in employment on the basis of religion, which is defined therein to include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

To establish that the employer failed to provide a reasonable accommodation, plaintiffs must first establish a prima facie case by showing that they:  (1) held a bona fide religious belief conflicting with an employment requirement; (2) informed their employers of this belief; and (3) were disciplined for failure to comply with the conflicting employment requirement.

Once a prima facie case is established by the employee, the burden then shifts to the employer to show it could not accommodate the employees’ religious beliefs without undue hardship.

Defendants argued that providing the requested accommodation would create an “undue hardship” due to plaintiff’s inability to be certified in accordance with the NYPD’s Chemical Ordinance, Biological and Radiological Awareness Training Program (CBRN certification). They claimed that “accommodating Plaintiff’s beard would compromise the NYPD’s goal of eventually achieving 100% CBRN certification and reduce the NYPD’s flexibility and efficiency to deploy officers during an emergency.”

The court agreed:

Plaintiff’s claim under Title VII is denied because Defendants have satisfied their burden to demonstrate undue hardship. An accommodation is said to cause an undue hardship whenever it results in ‘more than a de minimis cost’ to the employer. An employer may show that the cost of accommodation is more than minimal by showing either lost efficiency in other jobs or higher wages. Defendants meet that burden by explaining that Plaintiff will not be interchangeable with other CBRN-certified officers, thereby decreasing the efficiency of the Department to respond to emergencies.

Fourth, the court agreed with plaintiff that defendants failed to accommodate plaintiff’s religious practices under the New York City Human Rights Law, which provides broader protections than Title VII, particularly with respect to religious accommodations.

While Title VII does not define “undue hardship” in the context of religious accommodation, “the NYCHRL adopts a rigorous definition of an employer’s ‘undue hardship’ as ‘an accommodation requiring significant expense or difficulty,” and mandating that ‘[t]he employer shall have the burden of proof to show such hardship.'”  

In addition to generally protecting against discrimination on the basis of “creed”, the New York City Human Rights Law addresses “religious observance” in a separate subsection, NYC Admin. Code § 8-107(3).  That subsection provides (in relevant part):

(a) It shall be an unlawful discriminatory practice for an employer or an employee or agent thereof to impose upon a person as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such person to violate, or forego a practice of, his or her creed or religion, … and the employer shall make reasonable accommodation to the religious needs of such person. …

(b) “Reasonable accommodation”, as used in this subdivision, shall mean such accommodation to an employee’s or prospective employee’s religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business. The employer shall have the burden of proof to show such hardship.

“Undue hardship” as used in this subdivision shall mean an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system). Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

(i) the identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;

(ii) the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and

(iii) for an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The court granted plaintiff summary judgment on his NYCHRL claim because defendants failed to meet the higher burden of “undue hardship” under the NYCHRL:

Although Defendants have shown that the cost of accommodation is more than minimal because there would be some lost efficiency …, they have not shown that there would be significant expense or difficulty. In the absence of any details about the costs of accommodation and other individuals who may seek a similar accommodation, the Court cannot conclude that Defendants would accrue significant expense or difficulty if Plaintiff joined the 30% of NYPD officers who are not CBRN certified or those who qualify for a medical exemption.

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