Long Hair Ban Upheld by Judge Citing Need for ‘Maximum Safety’

Long Hair Ban Upheld by Judge Citing Need for ‘Maximum Safety’

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A federal district court has upheld a Philadelphia Fire Department directive regulating the length of hair and sideburns, banning beards and goatees, and limiting the size of moustaches.

In his opinion, Judge Edward R. Becker of the United States District Court for the Eastern District of Pennsylvania found that Directive 13 was lawful because it was needed to assure the maximum safety of Philadelphia fire fighters while wearing self-contained breathing apparatus. Stressing the importance of safety, the judge said that “the officials of the (fire) department have the duty to seek to achieve maximum safety; a little less safety will not do.”

Becker concluded, “In sum, we find that Directive 13 as a whole as well as in its component parts is justified by safety considerations which outweigh the plaintiffs’ constitutional right to long hair.”

The opinion was handed down last July 9 after a civil trial in which two former Philadelphia fire fighters, William M. Michini and Anthony J. Barbera, Jr., brought suit against Fire Commissioner Joseph R. Rizzo, Philadelphia Managing Director Hillel S. Levinson and the City of Philadelphia. The two plaintiffs were discharged from the Philadelphia Fire Department for failure to comply with Directive 13.

Reason for dismissal

The judge commented in his opinion that both plaintiffs were “in substantial violation of the directive in terms of the length of their hair on the sides and back, the length and style of their sideburns, the length of the hair on top of Michini’s head, and the length of Michini’s moustache. Both plaintiffs were dismissed solely because of the length of their hair.”

In Stull v. School Board of Western Beaver Jr.-Sr. H.S., the U.S. Court of Appeals, 3rd Circuit, held that the 14th Amendment supported the right of an individual to select his hair style, but this court also held that this right was not absolute. Becker noted in his opinion in the Philadelphia case that the Court of Appeals in the Stull case found “that legitimate community interests may outweigh the right, in which case the court must assess the reasonableness of the regulation in relation to its object.” The Appeals Court ruled that safety was a consideration that could justify intrusion on an individual’s right.

Becker declared in his opinion, “The defendants have met their burden of establishing a legitimate community interest which outweighs the right: the safety justification noted in Stull.”

Safety discussed

In discussing the safety justification, the judge commented, “Moreover, the safety factor concerns not only the individual fireman, but also his fellow fire fighters and others who may be trapped in a burning building, for to the extent that a given fireman is hindered in the performance of his duties, the risk to others (and to property) is increased. . .The officials in charge of department have a right— and a duty—to seek to achieve maximum safety. And, in terms of the Stull proviso, a less restrictive alternative which reduces the infringement of the constitutionally protected right but which is only a little less safe will not do. It must be equally safe to qualify.”

While the judge found “no doubt that Commissioner Rizzo believes that the directive serves a useful purpose in engendering paramilitary discipline” and also fosters good grooming that enhances public confidence in the fire department, “these were but secondary purposes” of the directive.

Becker commented “that the primary purpose of the directive was to foster safety, particularly the safe use of the Scott Pak self-contained breathing apparatus and resuscitator and to prevent the ignition or snagging of hair on the back of the neck during fire fighting operations. Consistent with this finding is the fact that the civilian employees of the department are not subject to hair regulations.”

Fair warning

After dismissing the plaintiffs’ contention that Directive 13 was too vague, the judge observed that any objection that vague laws “may trap the innocent by not providing fair warning” was overcome by the way the Philadelphia Fire Department implemented the directive. Becker declared that the two plaintiffs “had fair warning that they were in violation of Directive 13 before they were made to suffer the consequences.”

Becker noted, “Offending firemen are not fired on the spot. They are warned, or told to get a haircut, or suspended until they comply. Plaintiff Michini was placed on report, then suspended the same day, then notified of a hearing to be held six days later, which was rescheduled for six days later still; two days after the hearing he was notified of the department’s intention to fire him, followed ten days later by a notice of dismissal effective the next day. The manner of plaintiff Barbera’s dismissal was virtually the same.

“Thus, we feel both plaintiffs had fair warning that they were in violation of Directive 13 before they were made to suffer the consequences,” the judge stated.

Becker mentioned in his opinion that much of the testimony centered on “the potential safety hazard presented by the wearing of facial hair or long hair by firemen, with particular emphasis on the effect of facial hair and long hair upon the safe use of the Scott Air-Pak self-contained breathing apparatus.”

Expert witnesses heard

In his opinion, the judge recalled the testimony of two expert safety witnesses. Dr. Carl W. Irwin, a Bangor, Maine, neurosurgeon long associated with the fire service, was the expert witness for the fire department and the city. He testified that sideburns longer than Directive 13 permitted can impair the safe use of a Scott AirPak because “sideburns artificially add a deviation from normal facial contours and prevent mask-to-skin contact” where the mask must seal. Irwin testified that a fire fighter with a beard or long hair combed over his forehead encounters the same problem of a proper mask seal.

Dr. Harvey P. Utech, who at one time was in charge of a National Bureau of Standards program to improve fire service equipment, was the expert witness for the plaintiffs. He agreed with Irwin that beards and sideburns can impair the safe use of a Scott AirPak, but the main thrust of his testimony, the judge recalled, was “that the Philadelphia Fire Department is not using the latest and safest selfcontained breathing equipment,” which “would be substantially safer for a long-haired or bearded fireman.”

The new equipment, Utech testified, is a Scott Air-Pak that delivers air on a pressure-demand system and maintains a positive air pressure inside the mask. In the event of a leak, Utech explained, a pressure-demand system forces air outward, preventing entry of the ambient atmosphere into the mask.

The judge noted in his opinion that Utech “also testified that the pressure-demand system is not used by any fire department in the country.”

Reduced mask time cited

In evaluating the testimony of the two expert witnesses, Becker noted Irwin stated that a fire fighter’s air supply would last for a shorter time when a pressure-demand system was forcing air outboard through a leak in the mask seal.

The judge pointed out, “This could both reduce a fire fighter’s effectiveness by reducing the time he can fight the fire without leaving to replenish his air supply, and also endanger a fireman who is trapped inside a burning area and needs as much time as possible to increase his chance of escape.”

Becker concluded that “the pressure-demand system has several potential drawbacks, the most serious of which is that of providing less operating time than the demand system due to outboard leakage of air.” He also noted that “the pressure-demand system has never been used by any fire department anywhere. And we find that either system is safer when hair does not interfere with the seal than when it does.”

The defendants put on testimony that long hair on the back of the neck is a safety hazard because hair burns, and Irwin testified that if it is ignited, it can burn up under a helmet.

Sets hair afire

Under cross-examination, Michini maintained that hair singes when exposed to flame but does not continue to burn when the flame is removed. To prove his point, Michini briefly held a match to his hair.

“Unbeknownst to Michini, his hair ignited and burned brightly for several seconds,” Becker recounted in his opinion. “Five fire officers in the courtroom, reacting reflexively to the call of duty, jumped to their feet and shouted to him to extinguish the flame, whereupon he reached up with his hand and did so. He quickly volunteered that his hair spray, not his hair, was the cause of the fire.”

Directive 13

SUBJECT: PERSONAL APPEARANCE

  1. POLICY
    1. A. This directive is disseminated in order to ensure a neat personal appearance that does not interfere with nor detract from the safe and proper wearing of uniforms and equipment.

APPEARANCE STANDARDS

  1. HAIRCUTS
    1. Members will have their hair properly cut and neatly trimmed on the sides.
    2. Hair at the back of the neck will be kept trimmed in an even and tapered fashion.
    3. Hair on top of the head will not be overly long and will be combed or brushed in such a manner that it will remain clear of the forehead. It will not protrude from under the band of the cap or helmet.
    4. Bush, Afro, Natural, Freedom or other similar styles will be worn in moderation.

a.If hair is combed, picked, blown, or teased, it will not exceed 11/2″ in height, nor protrude from under the band of the cap or helmet at the front or sides.

b. Hair at the back of the neck will be kept trimmed in an even and tapered fashion.

  1. The attached illustrations will be used as a guideline.
  1. FACIAL HAIR
    1. Members will be clean shaven.
    2. Moustaches will be permitted, but must conform to the following provisions:

a. Moustaches will be kept neat and closely trimmed.

b. Moustaches will not extend beyond the corners of the mouth or below the upper lip.

c. Moustaches will be trimmed in such a manner as to leave the upper lip visible.

  1. Beards or goatees will not be permitted.
  2. The attached illustrations will be used as a guideline.
  1. C. SIDEBURNS
    1. Sideburns will be kept neatly trimmed and close to the face.
    2. Sideburns will, not extend below the middle of the ear.
    3. The attached illustrations will be used as a guideline.

BY ORDER OF JOSEPH R. RIZZO, FIRE COMMISSIONER

The judge concluded, “We are persuaded that hair exposed to the back of the neck constitutes a hazard on the firegrounds.”

The court’s opinion mentioned that both Michini and Barbera had at times tried to cover up their long hair on the job by wearing wigs and they contended that wearing a wig would obviate safety problems caused by long hair.

After citing the difficulty of fitting a wig over long hair, the judge also pointed out that Barbera could not remove a breathing apparatus mask in the usual one-handed manner without pulling off his wig. Furthermore, the judge recalled, Michini testified that a wig could be dislodged by physical activity and his hair could protrude without his knowledge.

Becker related in his opinion, “Michini testified to one incident where his wig caused difficulty with his Scott Pak resulting in interruption of his fire fighting duties. He was carrying a woman out of a burning dwelling and paused to remove his Scott Pak mask, which took the wig with it. He then had to have another fireman remove the woman from the building while he replaced the wig.”

The judge concluded, “Thus we find the wig to be an unsatisfactory alternative to Directive 13.”

After consideration, the judge rejected a ban on the use of hair spray, measures to ensure that extra long hair is tucked in and always wearing ear flaps down and collars up as “alternatives to the proscription of long hair at the back of the neck” that “would not admit of easy enforcement.”

Becker declared, “What is at stake is not the safety of the individual seeking to wear long hair alone, but also the safety of others.”

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