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An African American firefighter filed a lawsuit against the city of Berkeley and the California Occupational Health and Safety Administration (CALOSHA) for racial and disability discrimination on Tuesday, claiming that the two entities had prevented him from fighting fires due to safety rules that discriminate against black workers. 

In November 1998, CALOSHA adopted regulations that forbid employees with any facial hair from wearing the tight-fitting respirators firefighters are required to use at a fire scene. Harry Vernon, a 47-year old Berkeley firefighter, says these rules discriminate against the many African Americans who, like him, suffer from a medical condition called pseudofolliculitis barbae that gives them facial skin infections if they shave. 

In a statement made public on Monday, the plaintiff’s attorneys accused CALOSHA of being discriminatory by preventing any person with facial hair “from even taking the mask seal test.” They also blamed Berkeley for complying with state regulations that cause racial discrimination against African Americans and people suffering from the facial skin condition. 

“The law requires an employer to step up and stop discrimination that occurs in a workplace,” said attorney Lawrence D. Murray, during a phone conversation Thursday. “(Berkeley) has admitted that this law is discriminatory against blacks and has refused to sue CALOSHA to stop it.” 

The city attorney’s office immediately reacted to the suit, filing a statement specifying that the city administration is required by law to follow CALOSHA’s regulations. “Although the city of Berkeley is sympathetic to and has advocated to CALOSHA the cause espoused by Berkeley’s firefighters...the city of Berkeley has no choice but to follow the state law,” the statement read. 

Vernon, who has been working for Berkeley’s fire department for 24 years, said he was removed from his position as an active firefighter and placed in a 40-hour a week administrative job in October 1999, after he protested against the city’s implementation of the new respiratory protection policy. 

“Because I had visible facial hair I was said to have failed the test without even participating in the procedure,” said Vernon, who wears his beard cropped short. “It was a known fact that I had passed the same procedures in the past, and I have since passed that same test to prove to CALOSHA that I could pass it with a beard.” 

In addition to losing his original job Vernon said he has been subjected to a hostile work environment. The hostility was expressed through letters threatening to force him out of the fire department.  

Furthermore, “They have not paid me according to the pay scale for the work that I was doing,” he said. “I have been cast as a trouble maker.”  

The stress Vernon was put under, he said, led him to spend some time in a hospital and to stop working for 11 months.  

To CALOSHA, however, this legal action has little to do with discrimination. 

“We don’t see this as a discrimination issue, this is purely a safety and health issue.” said Dean Fryer, the institution’s spokesperson, adding that the state shouldn’t be charged for implementing regulations coming form above. “The lawsuit is filed against California, but California is following regulations that are federal,” he said. 

Fryer also said that CALOSHA could not accept Berkeley’s request for an exception to the rule, or a “permanent variance,” because the city had not proved it has found an alternative method that would guarantee the firefighter’s safety. CALOSHA, he added, is now waiting for the results of some testing the city is doing in conjunction with the University of California as part of an application for an experimental variance that would allow employees with a stubble to safely use a mask. 

According to Carroll Wills, communications director of the California Professional Firefighters, Vernon is the only firefighter in the state to have initiated legal action of this kind.  

However, similar cases have been reported in other states. Last May for instance, six firefighters from Washington, D.C. filed a federal lawsuit against the fire department. Their purpose is to obtain a court order that would allow them to keep the beard and long hair they wear for religious reasons despite safety policies. 

And in California, Vernon says he is not alone. “There are others that are suffering,” said Vernon. “But they are suffering in silence.”