Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—3d Cir.: Christian firefighter who refused to shave beard revives Title VII, Free Exercise claims, (Jun 2, 2025)

By Kathleen Kapusta, J.D.

The firefighter believes men should grow and maintain beards based on the teachings of Holy Scripture and early Christian theologians.

Vacating summary judgment against the Title VII accommodation and Free Exercise Clause claims of a Christian firefighter/air mask technician whose religious beliefs requiring him to grow and maintain a beard conflicted with the city’s requirement that firefighters be clean shaven while on duty, and who was suspended after he refused to report to duty during an emergency, the Third Circuit found that the city’s policy failed strict scrutiny and the city failed to show that his request to continue to wear his beard would impose an undue hardship. The court also reversed the denial of his motion for a preliminary injunction. It granted, however, summary judgment against his Equal Protection and Title VII retaliation claims. Judge Chung would have affirmed the district court’s decision as to the Free Exercise claim and Judge Porter would have vacated summary judgment on the firefighter’s Title VII retaliation claim (Smith v. City of Atlantic City, No. 23-3265 (3d Cir. May 30, 2025)).

To ensure the safety of its firefighters, the city requires them to wear air masks in hazardous and confined spaces and also requires that they be clean shaven while on duty so that the air masks form a seal on the firefighter’s face. Captains, however, can allow firefighters to deviate from the policy but they are personally responsible for the results of any deviation. In addition, administrative employees do not have to take “fit tests” for the air mask.

Air mask technician. Although the employee was classified as a firefighter, since 2015 he has been working as an air mask technician. In that position, he maintains the air masks and fills and refills them with air for firefighters on the scene. Because of the importance of this position, the city ordered him to stop engaging in fire suppression.

Religious beliefs. The employee believes men should grow and maintain beards based on the teachings of Holy Scripture and early Christian theologians. He began to grow a beard in 2018 and submitted an accommodation request asking that he be allowed to continue to wear his beard. While he waited for an answer, the city barred him from responding to fires. At some point, he was told his request had been denied and he was ordered to shave.

Suspension. He then sued, asserting Free Exercise and Equal Protection claims as well as Title VII accommodation and retaliation claims. He also sought a preliminary injunction. While discovery was underway, a tropical storm struck the city, and the employee was ordered to engage in fire suppression. When he refused, he was charged with insubordination and suspended. The district court subsequently granted summary judgment to the city on all claims.

Free Exercise Clause. On appeal, the Third Circuit, addressing the employee’s Free Exercise Clause claim, noted that the city’s exceptions to it grooming policy render it not generally applicable. Specifically, the court observed, the city allows administrative staff, all of whom are firefighters subject to its air mask rule, to forgo fit testing. Like the grooming policy, said the court, the fit-testing requirement implicates the city’s interest in ensuring proper mask fit and a safe supply of oxygen to firefighters. “In failing to subject administrative employees to fit testing,” the court continued, “the City has permitted certain kinds of conduct that undermine its interest while disfavoring religious conduct undermining the same interest,” which fails general applicability.

In addition, the grooming regimen has built in discretion in that captains may deviate from the air mask policy as long as they agree to bear full responsibility for the results of any deviation. “The mere creation of an exception mechanism that permits undermining the City’s interest destroys general applicability,” the court stated.

Strict scrutiny. Because the city’s policy is not generally applicable, the court found it was subject to the scrutiny of the Free Exercise Clause. After determining that strict scrutiny was the appropriate standard here, the court found that the city’s interest in keeping its firefighters safe was of great importance and, as applied to the employee’s exemption request, was sufficiently compelling.

It was not, however, narrowly tailored. The city, explained the appeals court, not only could remove the employee from fire suppression duty as it previously did, it could reclassify him as a civilian who is not subject to the air mask and grooming policies. It also could have tried to fit test him to see how much his facial hair would have interfered with the mask’s fit. Noting that there were likely more solutions than just these, the court found the policy failed strict scrutiny. Thus, it vacated summary judgment against this claim.

Title VII accommodation. Regarding the employee’s Title VII accommodation claim, because the district court and the parties assumed the employee established a prima facie case, the appeals court turned to the lower court’s determination that because the city “made a good-faith effort to reasonably accommodate” the employee, it was not liable regardless of undue hardship. But Third Circuit precedent, said the court, indicates that an employer must consider an accommodation request, and “not merely... assess the reasonableness of a particular possible accommodation.” While good faith is useful in showing that an employer considered a claim but could not accommodate without undue hardship or that it declined to consider any accommodation as futile due to the presence of undue hardship, it is not, by itself, “a cure for a Title VII breach.”

Though the court acknowledged the city’s interest in preserving employee safety, it observed that “mere recitation of an interest does not establish undue hardship.” Indeed, the court found it telling that no air mask technician has been called to engage in fire suppression for several decades. As for the 2020 emergency call to which the employee refused to respond, the court pointed out that he was ordered to report after the city breached several layers of protocol for an emergency that did not even require an air mask as there were no actual fires. Noting further that no other personnel, whether administrators or active firefighters, are seeking an accommodation relating to the air masks, the court found the risk the city would be unable to respond to an emergency safely was unlikely. For all these reasons, the court also vacated summary judgment on the employee’s Title VII accommodation claim.

Title VII retaliation. As to his Title VII retaliation claim, the appeals court agreed that the employee engaged in protected activity when he requested an accommodation, lodged a complaint with HR in furtherance of that request, and filed this lawsuit. He failed, however, to show he suffered an adverse action. He pointed to the city’s denial of his religious exemption request but the approval or denial of any accommodation request is an anticipated part of the process, said the court, and being told to report to work clean shaven or be suspended was consistent with and part of the denial itself.

As to his contention he suffered an adverse action when the city sent him to perform fire suppression in the tropical storm emergency without training and then suspended him when he did not follow orders, the court found he failed to show his protected activity caused the assignment and suspension as more than 18 months elapsed between his protected activity and the tropical storm assignment.

Pretext. Even had the employee been able to establish a prima facie case, the city offered a legitimate, nonretaliatory reason for the assignment and suspension—the call volume for the emergency was so high that the city needed all firefighters to respond and he refused to follow a direct order—and he failed to show pretext. He did not dispute that all firefighters, including administrators, were called in for emergency response purposes, that there were numerous 911 calls and several structural collapse calls, or that the deputy chief had to suspend medical calls due to lack of manpower, and the city really needed the engine to which he was assigned to respond. Accordingly, the court affirmed summary judgment on the employee’s retaliation claim.

Equal Protection Clause. In support of his Equal Protection Clause claim, the employee compared himself to off-duty firefighters whom, he claimed, were allowed to wear beards and respond to emergencies with their beards. Finding this to be inaccurate, the court cited the chief’s testimony that any firefighter who comes to work with anything more than a five o’clock shadow is not allowed to fight fires. And when the employee is called in from being off-duty, the same applies to him, said the court. “These men’s scruff do not implicate the City’s safety interest; [the employee’s] beard does, at least according to the policy.”

As to his contention that because previous air mask technicians were never called to suppress fires, and he was, this violated his rights, the court pointed out that those technicians, and the employee, were and are designated as firefighters and the employee contracted to perform these tasks as part of his job. “A citizen’s right to equal protection is not violated just because his government-employer orders him to fulfill a valid and agreed-upon term of employment,” said the court, affirming summary judgment against this claim.

Preliminary injunction. Finally, the court reversed the denial of the employee’s motion for a preliminary injunction, finding he had a likelihood of success on the merits. “Given the overlap between [the employee’s] free-exercise and Title VII accommodation claims, he meets the standard for relief.” Further, said the court, the loss of his First Amendment freedoms constitutes irreparable injury.

The case is No. 23-3265.

Judge: Porter, D.

Attorneys: Luna Droubi (Beldock Levine & Hoffman) for Alexander Smith. Nicholas DelGaudio (Cleary Giacobbe Alfieri Jacobs) for City of Atlantic City.

Companies: City of Atlantic City

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