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Fashion Victim

Company policy requires a shave? Not so fast. It may come down to the finer points of freedom of expression

By Michael Learmonth

Two weeks ago, Metro explored the case of Kirby Thompson, an African American man who sued a San Jose private security firm after he was fired for refusing to shave his shadow beard ( "Saving Face," Nov. 14). Thompson is one of the estimated 10 percent of African American men who suffer from pseudofolliculitis barbae, a painful condition commonly know as "razor bumps." His suit charges that no-beard policies discriminate because they disproportionately affect men of color.

Most companies with beard policies do make exceptions for employees with medical conditions. Those that don't could be affected by a precedent set in Thompson's case. But what about discrimination against fashion victims? Last week, Metro was contacted by a civilian employee of the San Jose Police Department whose affection for the sophisticated yet roguish goatee is earning him the wrath of the department.

In the summer of 1995, Wayne Cohen was looking for a change. He was 34 years old, single and in his seventh year working as a police data specialist in the records department of the San Jose Police Department. He took the test to apply for a promotion in the department. And having worn a beard since 1991, he decided to shave the sides of his face and wear his hair in a ring around his chin and mouth.

"I wanted to look different," he explains. "It's a really trendy or stylish thing nowadays."

For eight months Cohen plugged away at his job, happy with his new look. One day he went to his supervisor, Captain Ralph Torres, on a work-related issue. Torres, who had been silent on Cohen's look, said, "the goatee is against regulations and is going to have to come off."

Once a bastion of casual wear in the midst of the police department, the civilian employees of the records department were required to begin wearing blue and white uniforms and a badge in January 1996. Along with the uniform dictum, records department employees were also ordered to comply with the department duty manual, which has strict grooming guidelines restricting facial hair to a mustache.

Some of the older employees, including Cohen, managed to dodge the uniform requirement by convincing management to include a grandfather clause. And though the department is reviewing the appearance policy for civilians in the wake of employee complaints, the record keepers, for now, are subject to the same grooming rules as officers. "I think that's pretty fair, don't you?" asks department spokesman Luis Quezada.

But Cohen believes the "no-beard" policy infringes on his freedom of expression. He suspects the vehemence his goatee has caused relates to its association with street fashion and popularity with gang members.

Cohen contacted San Jose attorney Kathryn Murry Ehrman, who advised him that in California courts have held that "wearing a beard is a form of expression." To take away that freedom, she says, public employers must meet the following three-pronged test:

The policy must "rationally relate to the enhancement of public service"; the benefits the public gains "must outweigh the resulting impairment of the right"; and there must be "no other alternatives available which are less subversive."

Ehrman points out that Supreme Court Justice Antonin Scalia caused a stir last year when he came back from vacation sporting a beard.

San Jose police officers and firefighters have long been required to keep a clean shave. Firefighters stay shaven in order to use the breathing apparatus that protects them from hazardous fumes. Police officers are required to shave under section c1305.30 of the duty manual. Exceptions have been made for officers with pseudofolliculitis barbae.

Last January, Cohen received an award as the month's "outstanding records department employee." Three days later he was notified that he was passed over for promotion, when a clerk with a lower score on the management test was made a supervisor. Cohen's report explained he was passed over for not being "more supportive of the administration."

But for Cohen, more is at stake than a promotion. "I don't want them regulating this," he says, stroking his beard. "It's a matter of principle."

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From the November 27-December 4, 1996 issue of Metro

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Copyright © 1996 Metro Publishing, Inc.

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