Dep t of Correction v. Shabazz OATH Index No. 111/03 (Aug. 21, 2003)

Transcription

1 Dep t of Correction v. Shabazz OATH Index No. 111/03 (Aug. 21, 2003) Petitioner charged respondent with failing to obey orders to trim his beard in accordance with Directive Respondent, a Muslim correction officer with a five-inch beard, alleged that his religion prohibited cutting his beard. Respondent satisfied his prima facie case of proving religious discrimination under Title VII where: (1) he notified the Department in writing that he could not cut his beard because of the requirements of his faith; (2) the Department pursued disciplinary action for his failure to comply with its regulation; and (3) respondent had a bona fide religious belief that cutting his beard would violate the tenets of his faith. The ALJ found that the Department failed to prove that accommodating respondent would pose an undue hardship, rejecting the Department s gas mask safety rationale for its failure to accommodate, considering that the Department does not ban all beards and lack of evidence that a flat twist alternative for wearing gas mask would be unduly burdensome to the Department. Thus, the charge was dismissed. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - HASANI SHABAZZ Respondent REPORT AND RECOMMENDATION ROSEMARIE MALDONADO, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Petitioner alleges that respondent, Correction Officer Hasani Shabazz, engaged in misconduct by failing to obey four separate orders to trim his beard pursuant to the specifications set forth in Directive Respondent asserts that he cannot comply with these requirements because his Islamic faith prohibits the cutting of beards. A hearing was held before me on March 17, May 1, and May 15, Post-hearing submissions were filed on June 10, After evaluating the testimony and documentary evidence

2 -2- presented at the hearing, and assessing the credibility of the witnesses, this tribunal is persuaded that respondent did not engage in sanctionable misconduct. ANALYSIS It is undisputed that respondent is a Muslim correction officer who has worn a beard for many years. Prior to 1999, respondent routinely trimmed his beard. Thereafter, he became convinced that this practice was prohibited by the tenets of his faith. Respondent's beard is now approximately five inches in length. It is further uncontested that respondent informed the Department that his religion does not permit him to obey his superior's repeated orders to trim his beard in conformity with the Department's uniform regulations. Directive 2270 specifically states: Beards must be closely trimmed and shaped in conformity with the jaw line. Mustaches and sideburns must be neatly trimmed. All facial hair must be trimmed within 1" from the face and worn in a manner that will not interfere with the wearing and utilization of any protective gear (Pet. Ex. 1). The following is a summary of the relevant evidence presented by the Department in support of its case. Deputy Warden Thomas Tsotsoros testified that in July 2002 he spoke to respondent about his beard and asked that he submit a report explaining why it is longer than permitted by Departmental regulations. Respondent complied and communicated to Deputy Warden Tsotsoros that he could not cut his beard for religious reasons (Tr ). After consulting with the Department's legal division, and an imam, the Deputy Warden requested additional information from respondent. Respondent submitted a "religious book" in support of his position (Tr , 25-26, 30-31). The Department decided that disciplinary action should be taken and three command disciplines were issued (Tr , 33; Pet. Ex. 3, 4, 5). Respondent did not accept the command disciplines and requested a formal hearing. During a corrective interview, Deputy Warden Tsotsoros told respondent that if he trimmed his beard the charges would be dropped (Tr. 18, 22). Deputy Warder Tsotsoros added that respondent is routinely given days off for religious observance (Tr ). Captain Calvin Arthur is assigned to the Correction Academy where he teaches classes on chemical agents and security skills. He testified that during actual emergencies, such as a Tactical Search Operation ("TSO"), all officers not assigned to a housing post report to a staging area. If

3 -3- chemical agents will be released during the operation, the officers will be required to wear protective equipment including vests, helmets, batons, and M-17 gas masks. While at the staging area correction officers are inspected by supervisors for compliance with the proper method of wearing protective gear (Tr , 97, 100, 103). Captain Arthur advised that during these inspections supervisors determine whether any officer is wearing contact lenses. Contact lenses exposed to certain chemicals can melt and require surgical removal (Tr. 94). He would not send an officer wearing contact lenses into a situation where chemical agents will be used (Tr ). Likewise, officers with asthma may be excused because substances such as pepper spray can have an adverse effect on their health (Tr ). At the hearing Captain Arthur made a detailed presentation concerning the M-17 protective mask. These masks are made to fit over the head and shield correction officers from inhaling chemical agents and succumbing to their effects. His training sessions teach correction officers how to put on these masks to guarantee maximum protection. For example, the officers must follow numerous steps to clear the mask of contaminants and to obtain an airtight seal (Tr. 85, 87). Captain Arthur testified that the effectiveness of a protective mask is reduced by factors such as mask deformity, facial disfigurement and facial hair. If a correction officer has facial hair he recommends that it be kept trimmed to no more than one inch in length. He conceded, however, that any facial hair prevents users from getting the optimal seal and increases the likelihood of an officer succumbing to chemicals (Tr , 90-91). It is Captain Arthur's opinion that respondent could not obtain an air tight seal on his mask due to the current length of his beard (Tr. 88). In addition, chemical agents can become embedded in a beard and later reactivated if not properly decontaminated. Long beards can also be targeted by inmates who might grab it to incapacitate an officer. Captain Arthur told respondent during a training session that given the security risks, the length of his beard was "insane" (Tr. 90). At the hearing, however, Captain Arthur suggested that short of cutting his beard, respondent could "roll it" to "bring down the length." Captain Arthur added, "I've seen the flat twist. Well, I know it to be a flat twist, to bring it down so he could possibly get the seal that he does need" (Tr. 88). Imam Umar Abdul-Jalil is a Muslim cleric employed by the Department as Director of Ministerial Services (Tr ). Based on his studies, and the consensus of other imams, he has

4 -4- concluded that Muslim men are prohibited from shaving their beards, but not from trimming them (Tr , 51). Imam Abdul-Jalil acknowledged that some Muslim scholars disagree with this conclusion, and that those scholars' followers must obey that proscription (Tr , 50, 57-59, 62). It is the general consensus, however, that respondent would not be committing a sinful act by complying with his employer's mandate to trim his beard (Tr. 65, 69). The following is a summary of the evidence presented by respondent. Assistant Deputy Warden Louis Rivera testified that he has supervised at least 50 inmate "extractions" during his career. An extraction is an ordered use of force during which officers are required to wear protective gear such as chin guards, knee guards, elbow pads, vests, riot batons, riot helmets and sometimes a gas mask. According to Assistant Deputy Warden Rivera, whether chemical agents will be used during a TSO is a determination made prior to inmate contact. The release of chemical agents requiring protective masks cannot be a spontaneous event because the medical conditions of inmates and officers must be factored in. Prior to sending correction officers on these assignments, he checks their equipment and asks whether any officer wears contact lenses or has a medical conditions which could be triggered by chemical exposure. Typical conditions are asthma and high blood pressure. These officers are excused and substitutes are found amongst the approximately 70 officers usually available for the assignment (Tr , 114). Assistant Deputy Warden Rivera added that given respondent's fixed housing post he is unlikely to be called to participate in a TSO (Tr. 114). Captain Kelley Brown Wilford is the facility's disciplinary officer. She testified that prior to 1999 respondent's beard conformed to the one-inch limitation (Tr ). She asserted that respondent has now been brought up on disciplinary charges because his beard has grown far beyond what is permitted by the Department (Tr ). It is the Department's concern that a five-inch beard impedes the use of a protective mask because the mask must be compressed against his face to work properly. If it is not sealed, pockets of air can seep in, increasing the user's vulnerability to chemical agents (Tr ). Lengthy beards can also pose a security risk if pulled by an inmate (Tr. 173). She denies that charges were filed to "get back" at respondent for his testimony in an unrelated disciplinary proceeding where his version of events differed from hers (Tr , ).

5 -5- Captain Wilford confirmed that the use of chemical agents in a jail is a premeditated action. It is a planned event where the officers' equipment is carefully inspected and briefings are held prior to commencing the extraction. The Department must follow these procedures because chemical agents cannot be used in the presence of inmates and correction officers with certain medical conditions (Tr , ). Imam Daud Haziz-Ramadhan testified that the Sunnah, the body of Islamic custom and practice based on the Prophet Muhammad's words and deeds, mandates that a man not trim his beard. According to the Imam, this is clearly set forth in Hadith chapter 65, paragraph 781: "Umar Allah's Apostle said, 'Cut the moustaches short and leave the beard (as it is)'" (Resp. Ex. B). Imam Haziz-Ramadhan elaborated that once a Muslim has knowledge of such religious requirements, he is bound to obedience (Tr. 120, 128). Respondent has not trimmed his beard for fear of being disobedient to Allah (Tr. 125). Imam Haziz-Ramadhan acknowledged that some scholars find it permissible to trim the beard. In his opinion, those leaders are mistaken because they can offer no evidence from the Qur'an, Sunnah or Hadith to support their position (Tr. 128). Respondent may have followed this incorrect interpretation at an earlier point, but he has "increased in knowledge" and is "bound to what [he] knows." Once a believer "comes upon the right path, [he] cannot contradict or oppose that path." If a Muslim is shown that he is not to trim his beard and chooses to do it, then he violates a basic tenet of faith (Tr. 132). Respondent testified that he has been a correction officer since 1990 and has been a Muslim for 20 years (Tr ). Respondent acknowledges that he trimmed his beard in the past, but insists that he now believes that the mandate to let it grow is an "essential part of his religion" (Tr , 225). He explained that he had not known this to be a requirement, but now that the truth has been "revealed" to him, he must obey (Tr , 220, ). Respondent has not cut his beard since 1999 (Tr ). Once the length of his beard was challenged by the Department, respondent again sought the advice of imams who worked at correctional facilities. Although one imam advised him to trim the beard, he did not produce any scriptural evidence in support of that position. Without explicit scriptural backing, respondent could not follow this suggestion for fear of being disobedient to Allah

6 -6- (Tr ). In his written report to Deputy Warden Tsotsoris, respondent explained that there was a religious basis for allowing his beard to grow. He also submitted copies of the Qur'an and Hadith supporting his stance (Tr ; Resp. Exs. A, B). Despite this explanation, he was again ordered to cut his beard (Tr. 206). Respondent added that, despite the length of his beard, he has participated in TSOs and inmate extractions without any problems (Tr. 207). He explained that during a TSO officers assemble in the gym, don their equipment and are given instructions. The masks are inspected by the captains to ensure they are on properly. He has always passed these inspections (Tr , 222). 1 In general, once an order has been issued, City employees are required to abide by the "obey now, grieve later" principle. This rule requires that an employee obey the order when it is given and subsequently challenge it through formal grievance procedures if there are any substantive or procedural objections. Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Strokes v. City of Albany, 101 A.D.2d 944, 475 N.Y.S.2d 635 (3d Dep't 1984); Health and Hospitals Corp. (Kings County Hospital Center) v. Gordon, OATH Index No. 1843/98 (Nov. 2, 1998). Exceptions to the obey now, grieve later rule include orders that are unlawful (Alper v. Gaffney, 73 A.D.2d 644, 422 N.Y.S.2d 744 (2d Dep't 1979)), clearly beyond the authority of the supervisor to make (Ferreri, 62 N.Y.2d 855, 477 N.Y.S.2d 616), or imminently threaten the health or safety of the employee or others (Reisig v. Kirby, 62 Misc.2d 632, 309 N.Y.S.2d 55 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1979)). Respondent argues that because cutting or trimming his beard is forbidden by the Sunnah and Hadith, the Department must accommodate his religious belief by granting him an exemption 1 Respondent also believes that he ha s been targeted because he testified against a captain in a disciplinary hearing (Tr. 211, 216). According to respondent, prior to the testimony in that case, the length of his beard was never challenged by the Department (Tr ). Moreover, there are other officers with long beards who have not been ordered to trim it (Tr. 212, 217). Respondent presented a number of witnesses in support of this theory (Tr , ). The evidence presented in support of the claim, however, had no probative value. Each of the witnesses merely recounted opinions and hearsay statements leading to speculation. Such evidence is insufficient to establish a defense to the charges. In addition, absent compelling evidence of a discriminatory motive, this tribunal has no jurisdiction to rule on respondents' claim of selective prosecution. See Department of Sanitation v. Yovino, OATH Index No. 1209/96 (Oct. 9, 1996), aff'd in p art, rev'd in part, N.Y.C. Civ. Serv. C omm 'n Item No. CD (Dec. 4, 1997); Department of Correction v. Mercer, OATH Index N o. 1638/95 (Sept. 13, 1995).

7 -7- to the one-inch beard limitation. He further contends that because the supervisor's order is discriminatory, it is an unlawful order and he cannot be disciplined for disobeying it. See Alper v. Gaffney, 73 A.D.2d 644, 422 N.Y.S.2d 744 (2d Dep't 1979). Although this is not a Title VII action, the law of discrimination is relevant because respondent raises it as a defense to the charges. See Dep t of Correction v. Noriega-Harvey, OATH Index No. 575/93, mem. dec. (Feb. 17, 1993). At the outset it is important to note that in a recent constitutional challenge, the Second Circuit found that, on its face, Directive 2270 is a valid and neutral regulation. In Seabrook v. City of New York, 210 F.3d 355 (2d Cir. 2000), female correction officers objected to the Department's requirement that they wear pants at work, claiming it would violate their religion to wear "masculine" clothing. The Court held that it is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy, or statute that burdens a religious practice, provided that the burden is not the object of the otherwise neutral provision. The Court reasoned that, DOC has a compelling interest in the security and safety of its correction officers and inmates.... All Correction Officers are subject to duties which implicate DOC s proffered security rational for the Directive (2270). The finding in Seabrook, supra, is not dispositive of this case. To establish a prima facie case of religious discrimination under Title VII, an employee must show that he or she: (1) has a bona fide religious belief that conflicts with an employment requirement; (2) informed the employer of this belief; and (3) was disciplined for failure to comply with the conflicting employment requirement. Ansonia Bd. of Education v. Philbrook, 479 U.S. 60, 65-66, 107 S.Ct. 367, 370 (1986). Respondent has satisfied his burden of proving a prima facie case of religious discrimination. Two elements of respondent's case were uncontested. First, it was undisputed that respondent notified the Department in writing that he would not cut his beard due to the requirements of his faith. Second, the Department openly asserts that it has pursued disciplinary action because it seeks to have respondent comply with its beard regulation. Third, respondent's testimony, and that of Imam Haziz-Ramadhan, persuaded this tribunal that respondent's decision to grow his beard was based on a sincere belief that trimming it would constitute disobedience to Islamic law. In making this finding, I acknowledge that the Department attempted to discredit respondent's religious belief by presenting an imam whose opinion with respect to facial hair differed from that

8 -8- of respondent. Specifically, Departmental witness Imam Abdul-Jalil testified that it is the "consensus" of Muslim scholars that Muslims are not proscribed from trimming their beards. His personal opinion, however, is not determinative. Courts deciding Title VII disputes have warned against limiting the statute's religious protection to the uncontroverted tenets of any faith. Rather, what is at issue is the subjective good faith of an adherent that the particular practice engaged in is in furtherance of his faith. For example, in Geller v. Secretary of Defense, 423 F. Supp. 16 (D.D.C. 1976), the Court was persuaded that although the wearing of beards is not necessarily required by the Jewish faith, it is a well established religious tradition which the plaintiff followed in furtherance of his religious practice. In light of Geller and other cases addressing this point, the Department's effort to challenge the authenticity of respondent's practice was unpersuasive. The Department also failed to prove that respondent's religious practice was not sincere because he previously held an inconsistent position on this issue. It is uncontroverted that respondent did trim his beard prior to However, he credibly explained that he ceased this practice after increasing his knowledge and understanding of Islamic scriptures. Imam Haziz- Ramadhan verified that, as a matter of conscience, respondent stopped trimming his beard when he became aware that the practice violated the Hadith and Sunnah. Even Departmental witness Imam Abdul-Jalil conceded that Muslims are required to follow the authority of their religious leaders and that these scholars have somewhat contradictory interpretations of the beard requirement. Title VII acknowledges that religious beliefs are not static. For example in EEOC v. IBP, Inc., 824 F. Supp. 147 (C.D. Ill. 1993), the court found that a plaintiff's admitted loss of faith after his discharge did not affect the sincerity of his belief during the relevant time frame. Accordingly, this tribunal credits respondent's contention that he rejected his prior practice based upon a new understanding, as revealed to him by Islamic authority, that he must refrain from cutting his beard. Once a prima facie case of discrimination has been established, the burden shifts to the Department. EEOC Guidelines provide that an employer has an obligation to reasonably accommodate an employee's religious practices. A refusal to reasonably accommodate is justified only when an employer can demonstrate that an undue hardship would in fact result from each available alternative. 29 C.F.R. sec (b). An accommodation results in an undue hardship, and is therefore not required, if it imposes more than a de minimis cost upon the employer. Trans

9 -9- World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct (1977); Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9 th Cir. 1984). The employer fulfills its obligation under Title VII once it has offered a reasonable accommodation, if one exists. Ansonia Bd. of Education v. Philbrook, 479 U.S. 60, 107 S.Ct. 367 (1986). Safety considerations are highly relevant in determining the reasonableness of a proposed accommodation. Legitimate safety concerns, however, do not eradicate the Department's duty to explore alternatives. Under Title VII the burden is on the employer to undertake initial steps toward an accommodation and to engage in negotiations with its employee. Hussein v. Waldorf-Astoria Hotel, 134 F. Supp.2d 591, 593 (S.D.N.Y. 2001). Federal courts have provided guidance on this issue. For example, in Vargas v. Sears, Roebuck & Co., 1998 U.S. Dist. LEXIS (E.D. Mich. 1998), the employee refused to comply with a grooming policy to cut his hair on the basis that it violated his Native American religious beliefs. The Court found that Sears had "attempted in good faith to reasonably accommodate plaintiff's religious beliefs" by negotiating with plaintiff and his counsel, offering plaintiff the ability to tuck his hair inside his collar instead of cutting it, and giving him two months to wear his hair out of compliance while it grew long enough to be placed inside his collar. This type of interactive process is mandated under Title VII where, as here, alternatives are available. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S. Ct (1977); Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993); Brener v. Diagnostic Center Hospital, 761 F.2d 141 (5 th Cir. 1982). Despite Title VII's clear mandate, the Department refused to offer any accommodation to respondent's religious practice on the grounds that long beards compromise the safety and security of jails. However, the Department's own witness, Captain Arthur, testified that respondent could "possibly get the seal that he does need" by rolling his beard in a "flat twist" neatly around the jaw line. Captain Arthur added that he had seen other officers use this technique. Although he emphasized that the best seal is achieved with no facial hair, and advised that it would be best for all officers to cut their beards, the "flat twist" appeared to be a viable alternative when wearing a mask. In addition, respondent could use the "flat twist" to also avoid the potential vulnerability of being targeted by inmates (Tr. 88, 92).

10 -10- Although the Department debated whether to bring charges in this case, and asked respondent to submit information substantiating his belief, there is no evidence that the type of negotiation described by the Court in Sears actually took place. This is particularly troubling because the "flat twist" alternative, which was raised by the Department's witness, was never presented to respondent as an option. For the following reasons I find that the Department failed to prove that accommodating respondent would establish even a de minimis burden. Therefore, its refusal to propose an accommodation is inconsistent with the mandate of Title VII. See EEOC v. Electronic Data Systems, 1983 WL 464 (W.D. Wash. 1983), aff'd, 2002 WL (11 th Cir. 2002) (employer's failure to demonstrate any effort to accommodate an employee's religious practice of growing a beard constituted religious discrimination in violation of Title VII). First, although the Department presented witnesses who stated that a long beard was a security risk because pulling it could give an inmate a slight advantage during a physical confrontation, this testimony was speculative in nature. Likewise, the Department made conclusory assertions that a long beard interferes with the buttoning of a safety vest, and that it can become embedded with chemicals which may later reactivate. However, not one of the captains who testified at the hearing could point to a single incident of this nature happening in a prison, despite the uncontroverted testimony that there are a number of officers, including respondent, wearing very long beards. Such uncorroborated assertions cannot serve as the basis for an employer's claim that an accommodation is an undue hardship. See Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993) (Court rejected employer's Title VII defense that employee's religious practice of wearing a beard was unsafe because the employer failed to demonstrate a greater chance of injury to the bearded employee). Second, Captain Arthur unequivocally stated that all beards, including those which conform to Directive 2270, compromise the optimal seal of protective masks. However, if respondent pinned or twisted his beard close to the jaw line he would be able to seal his mask. This technique should have been considered as a reasonable accommodation which would put respondent in a position no riskier than that of other correction officers who wear beards in conformity with Directive Legal precedent supports the conclusion that an accommodation does not constitute an undue hardship where, as here, the safety rationale touted by the employer as an obstacle is not uniformly

11 -11- applied to similarly situated employees. In Rourke v. N.Y. State Department of Correctional Services, 201 A.D.2d 179, 615 N.Y.S.2d 470 (3d Dep t 1994), a Native American correction officer was disciplined for violating the agency's hair length policy. As a defense, the New York State Department of Correctional Services asserted that long hair raised safety concerns and adversely affected the discipline of its officers. The claimed safety concerns were rejected by the Court because female officers were permitted to have hair of any length, as long as it was tied up to conform to the agency's rules. 2 This rationale is applicable to the case at bar because with the "flat twist" there is a strong likelihood that respondent can reduce the length of his beard and ameliorate safety concerns. Third, the Department did not submit evidence to offer a convincing challenge to the efficacy of the "flat twist" technique with respect to the gas mask. Instead, in its post-hearing submission the Department argued that the "flat twist" was impractical. Specifically, the Department claimed that: Emergency situations, obviously, arise spontaneously. Respondent would not likely have the time, before responding to such a situation, to braid or flat twist his beard in a way that would afford him the maximum efficiency of a gas mask or a vest. The record, however, does not support this argument. As described by Departmental witnesses, the use of a chemical agent during a TSO is a planned event. Approximately 70 to 90 participating officers meet in a staging area and don the required protective equipment. Supervisors meet them in the staging area, inspect each officer's equipment for compliance, give general instructions and excuse officers with certain medical conditions. Given this evidence, there is little to substantiate that respondent would not have the time to twist his beard close to his face. 2 This tribunal is mindful that similar safety claim s have been successfully raised by employers as a defense to a religious discrimination claim under Title VII. As noted by the Department, in Bhatia v. Chevron U.S.A, Inc., 734 F.2d 1382 (9 th Cir ), the Court of Appeals held that Chevron did not discriminate against a Sikh machinist by enforcing its requirement that all employees be clean shaven if their duties involve potential exposure to toxic gases. Although the Court accepted the plaintiff's assertion that his religion disallowed shaving, it decided that retaining plaintiff in the position of machinist, when his beard prevented the proper use of a respirator for emergency situations, would be an undue hardship. In Kalsi v. N.Y.C. Transit Authority, 62 F.Supp. 2d 745 (E.D.N.Y. 1998), a Sikh subway car inspector refused to comply with the requirement that he wear a hard hat on the basis that his religion prohibited him from covering his turban. The Court found that acco mmoda ting the plaintiff would be unreasonable under Title VII because the failure to wear a hard hat on the job increased the risk of a head injury. It is important to underscore, however, that, unlike the Department in this case, neither the employer in Bhatia nor the employer in Kalsi made exceptions to the applicability of their rules.

12 -12- Fourth, respondent testified, without contradiction, that he had passed inspections and had participated in TROs despite his long beard. That the Department has allowed his participation significantly weakens its argument that it would now create an undue burden. This issue was specifically addressed in Rourke, supra. There, the Court found that the agency's position that long hair imperiled prison security was not adopted because the agency had taken an inconsistent position on the issue. The Court further noted that: Perhaps the most unassailably convincing evidence in this case is the fact that petitioner himself was allowed, by his former supervisor, to wear his hair long for 14 months, and in all this time respondents are unable to point to a single incident illustrative of any problem with security, or for that matter, of any problem with morale or the correction officers' "espirit de corps," upon which they rely so heavily. Rourke, 201 A.D.2d at , 615 N.Y.S.2d at 473. Similar factors were not addressed during this hearing. Fifth, it is uncontroverted that the Department provides exemptions from TSO duty for correction officers who, for medical reasons, cannot be exposed to chemical agents. Specifically, the Department excuses officers with asthma, high blood pressure and those who wear contact lenses from TSOs. Respondent argues that it is discriminatory for the Department to make an accommodation for such medical reasons and refuse to accommodate officers adhering to their religious beliefs. The Department argues that this comparison lacks merit because the employer's obligation to make a reasonable accommodation under the American with Disabilities Act ("ADA") has been interpreted very broadly, while the obligation to make a reasonable accommodation for religious beliefs under Title VII is minimal. There is legal precedent supporting the Department's position that the ADA and Title VII establish different legal standards for determining whether an accommodation is an undue hardship on the employer. In Kalsi v. N.Y.C. Transit Authority, 62 F.Supp.2d 745 (E.D.N.Y. 1998), the Court specifically noted that, "Title VII's obligation to make a reasonable accommodation of religious practices should not be confused with the obligation imposed by the ADA..." The Court explained that the differentiation exists, "Perhaps because the accommodation of religious beliefs and practices raises constitutional questions under the Establishment Clause...."

13 -13- In a recent case, however, the Third Circuit rejected the argument raised by the Department. In Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.2d 359 (3d Cir. 1999), two Muslim police officers challenged the agency's prohibition against facial hair "below the lower lip, on the chin, or lower jaw bone" on the grounds that the agency excused police officers with certain medical conditions from compliance with this rule. Because the agency made exemptions from its policy for secular reasons, and did not offer any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, the Court concluded that the agency's policy violated the First Amendment. In doing so the Court rejected the agency's defense that the differential treatment was justified because medical exemptions are required by the ADA. The Court noted that the ADA and Title VII present "parallel requirements" to provide accommodations. Applying the heightened scrutiny test, the Court found that the First Amendment prohibited the agency from making a value judgment that secular motivations for wearing a beard were important enough to overcome its general interest in uniformity but that religious motivations were not. Although not directly on point, the Newark case raises serious constitutional questions about the Department's willingness to excuse correction offers from TSOs and its position that doing so as an accommodation for a religious practice would cause an undue hardship. Irrespective of Newark's application to this case, given that the Department does not ban all beards, even though facial hair of any length admittedly compromises the seal of protective masks, it has failed to prove by a preponderance of the credible evidence that the "flat twist" alternative would be an unduly burdensome accommodation to respondent's religious beliefs. Accordingly, respondent cannot be sanctioned for being out of compliance with Directive August 21, 2002 Rosemarie Maldonado Administrative Law Judge

14 -14- SUBMITTED TO: MARTIN F. HORN Commissioner APPEARANCES : AUDREY LIPFORD, ESQ. Attorney for Petitioner JAVIER A. RODRIGUEZ, ESQ. Attorney for Respondent