Washington DC Discriminates Against Firefighter's Handlebar Mustache

The District of Columbia Human Rights Act, which prohibits certain types of discrimination, was applied to the District's employees by Mayor's Order 75-230. Under Mayor's Order 75-230, the District is forbidden to discriminate in employment practices based upon an employee's "race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation."

The Order defines "personal appearance" as "the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hairstyle or beards."

Brian Kennedy was a firefighter with the District of Columbia Fire Department. The Department had grooming regulations which required male firefighters to be cleanly shaven and to have short hair. In violation of these regulations, Kennedy grew a handlebar mustache and a beard.

After initiating disciplinary proceedings against him, the Department eventually fired Kennedy for growing a mustache. In 1980, Kennedy began a long series of appeals through the District's administrative agencies which enforced Mayor's Order 75-230. Kennedy claimed that his discharge was based on his "personal appearance" and thus violated the Mayor's Order.

In 1995, the District of Columbia Court of Appeals ordered Kennedy reinstated with 15 years of back pay and lost benefits. The Court found that under the Mayor's Order, the legitimacy of the ban on facial hair depended on whether or not the ban was justified by a "reasonable business purpose" or by considerations of health, welfare or safety of any individuals. The Department argued that prohibition of facial hair was necessary because of the potential that such hair could interfere with the proper seal between a firefighter's face and the face mask of the firefighter's self-contained breathing apparatus (SCBA). The Court rejected the Department's argument, citing two factors: (1) During the hearing on his discharge, Kennedy demonstrated that he could obtain the proper seal on his SCBA despite his mustache; and (2) the District allowed twenty firefighters who were afflicted with pseudofolliculitis barbae to wear short beards, and there were no reported incidents resulting from improperly secured face masks for those twenty firefighters over the past seven years.

The Department also argued that its grooming code was necessary to maintain uniformity and "esprit de corps." The Court rejected this argument, finding that the grooming regulations were not uniformly applied and in fact varied from one engine company to another and from one firefighter to another.

The Court commented that "the public has little difficulty in identifying firefighters. While engaged in firefighting activities, the firefighters wear coats, hats, and shoulder patches emblazoned with departmental insignia. There has only been one reported incident where a member of the public failed to recognize a firefighter because of his beard. Significantly, no evidence was adduced indicating that the public would not respond to the directive of a firefighter with facial hair."

Finding that the District had been engaged in illegal mustache discrimination, the Court ordered Kennedy's reinstatement with full back pay and benefits.

Kennedy v. District of Columbia, 654 A.2d 847 (D.C. App. 1995).

COMMENT: Undergeneral discrimination law, afire protection or law enforcement employer is allowed to maintain grooming standards which prohibit facial hair. The Kennedy case is unusual because of the District of Columbia's laws prohibiting discrimination on the basis of "personal appearance."