still waiting for concrete examples

[ArtSpitzer at aol.com]

In a message dated 6/22/09 1:31:13 PM, Hamilton02 writes:

> I have to ask Art one question--  It seems quite clear from the record 
> that there really is a danger to those with facial hair in responding to 
> emergencies....
> 
Those not interested in the minutiae of the case can press delete now.   
I've pasted below a short (500 word) excerpt on safety from my opposition to 
the Fire Department's petition for rehearing.   The petition was denied.

Art 

III.     This Case Does Not Present a Serious Issue of Public Safety.

     The District urges the Court to apply a “particularly strong” 
preference for resolving this case on the merits, because “public safety is at 
issue.”   Pet. at 8.   But the district court's judgment poses no threat to 
public safety.
     The D.C. Fire Department, as a matter of official policy, allowed 
hundreds of firefighters to wear beards from sometime before 1973 until 
mid-2005. [Citation.] While initially limited to men with a skin condition, from 
1994 until 2005 all employees were permitted to wear beards, and many did. 
[Citation omitted.] It is uncontradicted that these thousands of man-years of 
bearded firefighting did not result in a single safety problem. [Citation.]
     At the very outset of this litigation, the retired Chief of Safety of 
the F.D.N.Y. explained in detail why facial hair does not undermine the 
safety of an SCBA [Self-Contained Breathing Apparatus].   [Citation.]   Faced 
with that compelling evidence, the Fire Department did not appeal the 
preliminary injunction issued at that time, and made no effort to pursue the litiga
tion in the district court for four years, during which time all firefighters 
remained free to wear beards. [Footnote omitted.] That changed in 2005, 
when the district court grew tired of having this case sit dormant on its 
docket and ordered the Fire Department to file within 15 days “a plain statement 
of what its official policy is with respect to facial hair.” R. Doc. 60.   
Seventeen days later the Department announced the new policy that is at issue 
in this case. R. Doc. 61.
     When called before the district court to justify the new rule, the 
Fire Department represented--at length and unambiguously--that its safety 
concern was limited to the use of negative-pressure respirators in circumstances 
not requiring the greater protection of SCBAs.   [Citation.]   The 
Department explained that “what we're worried about is a situation where you have to 
go into a contaminated area for an extended period of time,” and an SCBA 
would not be suitable because “once the air runs out, that's it,” while “
negative pressure masks . . . will allow them to work.   They can work the eight 
hours. [Citation.]   That explanation never changed until after summary 
judgment had been entered.
     The district court rejected the District's argument on the ground that 
it had not adduced credible evidence that in such a situation “bearded 
firefighters   . . . could not be redeployed either 'up' to areas of duty where 
SCBA use is required, or 'down' to cold zones where no respiratory 
protection is needed.”   Mem. Op. at 19.   The District did not contest that ruling 
on appeal.
     The record here should therefore leave the Court entirely comfortable 
that its affirmance of the district court's judgment creates no danger to 
the public safety of the District of Columbia.   The handful of bearded 
firefighters and paramedics protected by the permanent injunction in this case can 
hardly be cause for alarm in light of the undisputed fact that the D.C. 
Fire Department protected the city for more than 30 years with hundreds of 
bearded firefighters, without a single beard-related safety incident.






**************
An Excellent Credit Score is 750. See Yours in Just 2 Easy 
Steps! 
(http://pr.atwola.com/promoclk/100126575x1221823273x1201398689/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=62&
bcd=JuneExcfooterNO62)
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090622/9d727535/attachment.htm>