Exceptions and Inconsistent Enforcement Undermine Policies

Introduction

A single exception can now unravel your entire workplace safety policy. The Third Circuit's decision on May 30, 2025, in Smith v. Atlantic City,¹ underscores how even minor exceptions to grooming or masking rules can expose employers to legal risk. This decision raises the stakes for employers crafting policies that intersect with religious accommodations, particularly those involving mandatory masking or respirator use. The ruling makes clear that even well-intentioned safety policies can be invalidated if they contain practical or discretionary exceptions.

Factual Background

Alexander Smith, a firefighter employed by the Atlantic City Fire Department, was subject to the department's grooming policy which required firefighters to be clean-shaven. The policy was designed to ensure a proper seal when wearing self-contained breathing apparatuses (SCBAs), which protect firefighters from smoke and toxic fumes. A tight seal is essential for the SCBA to function properly. An imperfect seal can be deadly.

Although Smith was originally hired as a firefighter in 2004, his role later shifted to that of an Air Mask Technician, responsible for maintaining and filling SCBAs. Despite no longer actively fighting fires, Smith remained classified as a firefighter and was still subject to the department's grooming policy, which required regular fit testing for SCBA use. Smith, whose religious beliefs required him to grow a beard, requested an exemption from the grooming policy that required him to be clean-shaven. The city denied his request, citing the possibility that he could be called into active duty in an emergency.

Smith sued the city, alleging that it violated his rights under Title VII by failing to provide reasonable accommodation and by retaliating against him for engaging in protected activity. He also claimed violations of his constitutional rights to the free exercise of religion and to equal protection under the law.

The Court ultimately ruled in Smith's favor, finding that his rights to free exercise and reasonable accommodation had been infringed. The Third Circuit's ruling on Smith's free exercise claim carries far-reaching implications for employers navigating religious accommodations in safety-sensitive roles.

Legal Analysis

In interpreting the Free Exercise Clause, the Supreme Court has generally allowed rules that infringe on religious freedoms as long as those rules are neutral, generally applicable, and do not involve other rights.² Smith argued that exceptions to the SCBA-related policies rendered the grooming policy not generally applicable. The Third Circuit examined three key exceptions:

1. Facial Hair While Off Duty: The grooming policy allowed firefighters to grow facial hair while off duty or to grow facial hair that did not interfere with the SCBA seal, such as a mustache.
2. Administrative Staff Exception: The fit testing policy allowed administrative personnel—also classified as firefighters—to forgo SCBA fit testing, even though they were still subject to the grooming policy.
3. Captain's Discretion: Captains had the authority to deviate from SCBA-related policies at their discretion, provided they accepted responsibility for the outcome.

The Court held that the first exception (mustaches and off-duty facial hair) did not undermine the policy's general applicability. However, the second and third exceptions did. By allowing administrative staff to avoid fit testing and giving captains broad discretion to override safety policies, the city undermined the policy's general applicability.

The Court's Holding

The Third Circuit concluded that the policy was not generally applicable and was, therefore, subject to higher scrutiny. The city failed to meet that scrutiny because it could not demonstrate that denying Smith's request was the least restrictive means of achieving its interest in firefighter safety. As a result, the Court ruled in Smith's favor, allowing him to maintain his beard in accordance with his religious beliefs.

Notably, the Court rejected the city's argument that compliance with federal OSHA³ and New Jersey PEOSH⁴ regulations justified the denial. It also declined to give weight to the fact that the fit-testing exception appeared in a separate policy or that the captain's discretion applied broadly to all SCBA-related policies rather than specifically to the grooming policy. The Court instead focused on the practical effect of the policies as a whole.

Key Takeaways for Employers

This decision offers several important lessons for employers navigating religious accommodation requests related to PPE and masking requirements:

1. Review All Policies Holistically: Courts may consider the combined effect of multiple overlapping policies and not just the one directly at issue.
2. Beware of Discretionary Exceptions: Granting managers or supervisors broad discretion to override policies can undermine claims of general applicability.
3. Document Safety Justifications Carefully: Even legitimate safety concerns must be supported by evidence and narrowly tailored to avoid infringing on religious rights.
4. Regulatory Compliance Is Not a Shield: Compliance with OSHA or state safety laws does not automatically justify denying religious accommodations.
5. Train Managers on Religious Accommodation: Ensure those responsible for enforcing policies understand the legal standards and risks associated with religious accommodation claims.

¹ Smith v. City of Atl. City, No. 23-3265, 2025 WL 1537927 (3d Cir. May 30, 2025).

² Employment Division v. Smith, 494 U.S. 872 (1990).

³ 29 C.F.R. § 1910.134.

⁴ N.J. Admin. Code § 12:100-10.10.

This alert was drafted with assistance from Mark Schaeffer, a Summer Associate in the firm's Pittsburgh office.