"Religious" Belief Defined Broadly in Title VII Claim

Numerous cases challenging employers' refusal to grant exemptions to Covid vaccine mandates during the height of the Covid epidemic continue to wend their way through the courts. Here is the latest.

In Huber v. TIAA, (WD VA, April 17, 2025), a Virginia federal district court refused to dismiss a former employee's Title VII failure to accommodate claim and allowed the parties to move on to discovery.  The employer had refused to grant a religious accommodation, claiming that the employee's objections were secular, not religious.  According to the court:

... [Plaintiff] subscribes to “a faith based holistic healing process” promoted by the Optimum Health Institute in Southern California....  A page from the Optimum Health Institute’s website, which Huber attaches as an exhibit to the amended complaint, describes the Institute as “a healing ministry of the Free Sacred Trinity Church, which promotes healing through the use of non-medical, all-natural, holistic healing practices.”...

Shortly after Huber filed her amended complaint, the Fourth Circuit clarified that courts evaluating religious discrimination claims should not rigorously examine whether a plaintiff’s beliefs are “religious in nature.”...  It confirmed that courts should limit the inquiry to “whether ‘the beliefs professed . . . are, in the claimant’s own scheme of things, religious[.]’”...  An employee’s claim that her belief “is an essential part of a religious faith must be given great weight” in this analysis....

... [T]his court finds that Huber has plausibly alleged the beliefs she communicated to TIAA were “religious in nature.” Huber’s asserted faith, which “comes from the belief in a universal force and energy” and focuses on holistic healing ... is different than the biblical Christianity employees often invoke when seeking exemptions to COVID-19 vaccine requirements....  But Title VII protects nonconventional as well as conventional religious beliefs—courts “are not free to reject beliefs because they consider them ‘incomprehensible.’...

The amended complaint does not provide a clear or complete account of Huber’s conversation with the TIAA interviewer, and it is possible that later fact development will show she did not communicate an objection that was based on a sincerely held religious belief.  But the court finds that her allegations are sufficient to allow for discovery on this issue....

Catholic Employers Get Permanent Injunction Against EEOC

In Catholic Benefits Association v. Lucas, (D ND, April 25, 2025), a North Dakota federal district court converted a preliminary injunction granted last September to a Catholic diocese and a Catholic employers' organization (see prior posting) into a permanent injunction. At issue are rules and guidance documents issued under the Pregnant Workers' Fairness Act and Title VII of the Civil Rights Act.  The permanent injunction provides in part:

(1) The EEOC and its agents are permanently enjoined from interpreting or enforcing the Pregnant Workers Fairness Act and any implementing regulations ... against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to accommodate abortion or infertility treatments that are contrary to the Catholic faith, speak in favor of the same or refrain from speaking against the same.  

(2) The EEOC and its agents are permanently enjoined from interpreting or enforcing Title VII of the Civil Rights Act of 1964, any implementing regulations or guidances, including the Enforcement Guidance on Harassment in the Workplace, against the Diocese of Bismarck and the CBA, including present and future members, in a manner that would require them to speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; refrain from speaking or communicating against the same when such is contrary to the Catholic faith, use pronouns inconsistent with a person’s biological sex; or allow persons to use private spaces reserved for the opposite sex.

ABC News reports on the decision.

3rd Circuit Rejects Title VII Claim by ER Doctor Who Was Denied Religious Exemption from Covid Vaccine Mandate

In Bushra v. Main Line Health, Inc., (3d Cir., April 10, 2025), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a Title VII suit brought by an emergency room physician who was denied a religious exemption from his hospital's Covid vaccine mandate. The court said in part:

Dr. Bushra’s arguments on appeal largely challenge the District Court’s determination that MLH established the undue hardship defense to his religious discrimination claims. ...

MLH provided unrebutted expert testimony that unvaccinated healthcare workers, like Dr. Bushra, presented an increased risk of transmitting COVID-19 to others, particularly when they interacted with vulnerable groups.... [P]atients and employees at MLH died from COVID-19, and the on-site spread of this serious infectious disease compromised MLH’s mission and ability to care for sick patients, and it jeopardized the health and efficacy of its employees and staff.  MLH’s expert additionally testified, contrary to Dr. Bushra’s assertion, that alternative infection control strategies, such as frequent testing and masking, were not sufficient to prevent transmission....

As MLH has presented substantial evidence of undue hardship, and Dr. Bushra has not provided any “actual evidence in the record on which a jury could decide an issue of fact [his] way,” we will affirm the District Court’s grant of summary judgment.

Supreme Court Denies Cert. In Title VII Religioius Discrimination Case

The U.S. Supreme Court today denied review in Hittle v. City of Stockton, California, (Docket No. 24-427, certiorari denied 3/10/2025). Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of cert. In the case, the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a Christian religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. (See prior posting.) In his dissent, Justice Thomas said in part:

I would have taken this opportunity to revisit McDonnell Douglas and decide whether its burden-shifting framework remains a workable and useful evidentiary tool.

CNN reports on the denial of review.

DOJ Starts Title VII "Pattern or Practice" Investigation of Antisemitism at University of California

The Department of Justice has launched an employment discrimination investigation of the University of California. A DOJ press release this week says in part:

The Federal Task Force to Combat Anti-Semitism announced that the Justice Department has opened a civil pattern or practice investigation into the University of California (UC) under Title VII of the Civil Rights Act of 1964. The investigation will assess whether UC has engaged in a pattern or practice of discrimination based on race, religion and national origin against its professors, staff and other employees by allowing an Antisemitic hostile work environment to exist on its campuses....

Under Title VII, the Justice Department has the authority to initiate investigations against state and local government employers where it has reason to believe that a “pattern or practice” of employment discrimination exists....

CBS News reports on the investigation.

Title VII Applies to Liberty University's Firing of Transgender Employee

In Zinski v. Liberty University, Inc., (WD VA, Feb. 21, 2025), a Virginia federal district court refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. In an extensively reasoned 70-page opinion, the court rejected several defenses asserted by the University. First the University contended that §§702 and 703 of the 1964 Civil Rights Act allow a religious employer to discriminate on the basis of transgender status when that is consistent with the employer’s religious belief. Those section allow a religious employer to discriminate "with respect to the employment of individuals of a particular religion." The court said in part:

Having determined that no source of law—from statutory text to legislative history to precedent—answers the question before us, the Court is left to weigh the imperfect arguments above, alongside the potential legal and social consequences of our decision. Drawing upon all of these considerations, we conclude that Sections 702 and 703 must be narrowly construed so as to permit discrimination only on the basis of an employee’s espoused religious belief or practice, such that religious employers have no license to discriminate on the basis of any other protected class. Where a religious employer discriminates on the basis of any other protected class in a but-for fashion, a statutory violation occurs, even if the decision was religiously motivated....

To decide that sex discrimination is acceptable so long as it is religiously motivated would allow employers to achieve all manner of discrimination under the banner of religion. So long as the religious institution can show that its view—despite directly implicating sex, race, or national origin—is a sincerely held religious belief, the religious institution would have free license to discriminate at will and evade the scrutiny of civil law. Not only would this subject potentially thousands of people to discrimination..., but it would supply religious institutions with a power not afforded to secular institutions, thereby generating favorites under the law and raising Establishment Clause questions....

The court also rejected the University's RFRA defense, concluding first that RFRA applies only to suits in which the government is a party. It added:

And even if Liberty were entitled to raise RFRA as a defense, we find that Title VII likely passes strict scrutiny....

On the record before us, enforcing this statute in Zinksi’s case merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse Zinksi’s behavior, or to allow Zinksi to spread a new message within the organization.... The minimal inroad on religious liberty here is easily justified by the exceedingly compelling governmental interest in eradicating sex discrimination in employment. Accordingly, we find that Liberty’s brief argument as to burden is insufficient to show substantial burden at this stage of litigation. Thus, strict scrutiny does not apply, and our analysis can come to an end.....

The court rejected the ministerial exception defense, saying in part that "nothing in the record suggests that Zinski was a minister." The court also rejected the University's freedom of expressive association claim, saying in part:

... [W]e must defer Liberty’s claim that it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior. However,... we cannot conclude that Zinksi’s presence at Liberty would “force the organization to send a message” that Liberty accepts transgender conduct as a “legitimate form of behavior.”... Zinksi is an IT employee who has limited to no interactions with students, has no role in influencing or promoting Liberty’s value system, and has no role in Liberty’s religious curriculum or programming. The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who “sins” despite Liberty’s opposition to sin in general....

Finally, the court rejected the University's ecclesiastical abstention defense, saying in part:

Zinski’s complaint asks the Court to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether a religious institution, like Liberty, has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired.

7th Circuit Hears Arguments on Accommodating Teacher Who Objects to Using Students' Preferred Names and Pronouns

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Kluge v. Brownsburg Community School Corporation. (Audio of full oral arguments.) In the case, an Indiana federal district court dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The district court agreed with the school's rejection of using only students' last names as an accommodation. (See prior posting.) ADF, the teacher's counsel, issued a press release ahead of yesterday's arguments.

1st Circuit Accepts Employer's Undue Hardship Defense for Denying Religious Exemption from Covid Vaccination

In Rodrique v. Hearst Communications, Inc., (1st Cir., Jan. 17, 2025), the U.S. 1st Circuit Court of Appeals upheld the dismissal of a Title VII lawsuit brought by a TV news photographer who asserted religious objections to his employer's Covid vaccine mandate. The employer refused to provide an accommodation, asserting that it would impose an undue hardship. The district court dismissed plaintiff's claim on the ground that his objection was not religious but instead reflected "a personal medical judgment about the necessity of COVID-19 vaccination" expressed in religious language. On appeal, the 1st Circuit held that it did not have to reach the issue of whether plaintiff's objections were religious because defendant had adequately carried its undue hardship defense. The court said in part:

Rodrique contends that Hearst has not proffered admissible evidence showing that the vaccine actually protects against the transmission of COVID-19.  As Rodrique frames the issue, if the vaccine does not reduce the likelihood of COVID-19 transmission -- as opposed to merely mitigating symptoms, for example -- then Hearst suffers no undue hardship by granting him an exemption.  And in Rodrique's view, only expert testimony can support this conclusion.,,,  

,,, [W]e disagree with Rodrique that Hearst did not provide legally sufficient evidence....  Because ... Hearst relied "on the objective, scientific information available to [it]," with particular attention to "the views of public health authorities," we hold that it acted reasonably when it determined that vaccinated employees are less likely to transmit COVID-19 than unvaccinated employees.

Business Insurance reports on the decision.

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

4th Circuit: Covid Vaccine Religious Accommodation Suit Should Not Have Been Dismissed

 In Barnett v. INOVA Health Care Services, (4th Cir., Jan. 7, 2025), the U.S. 4th Circuit Court of Appeals reversed the dismissal of Title VII and state law claims by a former registered nurse who was denied a religious exemption or accommodation from her employer's Covid vaccine mandate. The court said in part:

Barnett has sufficiently alleged her beliefs are religious in nature.  Specifically, Barnett alleged, amongst other things:  (1) “it would be sinful for her to engage with a product such as the vaccination after having been instructed by God to abstain from it”; (2) her “religious reasons for declining the covid vaccinations. . . were based on her ‘study and understanding of the Bible and personally directed by the true and living God’”; and (3) receiving the vaccine would be sinning against her body, which is a temple of God, and against God himself....  At this stage, these allegations are sufficient to show that Barnett’s “belief is an essential part of a religious faith” that “must be given great weight[,]” ... and are plausibly connected with her refusal to receive the COVID-19 vaccine.

Suit Challenges Museum's Diversity Policy as Violative of Employee's Religious Beliefs

Suit was filed last week in a New York federal district court by an employee of the Genesee Country Museum who was fired from her managerial position because her religious beliefs were inconsistent with the Museum's Diversity, Equity, Acceptance and Inclusion Policy. The complaint (full text) in Berkemeir v. Genesee County Museum, (WD NY, filed 1/2/2025), alleges that plaintiff's dismissal violates her free exercise and free speech rights, the Equal Protection Clause, and Title VII of the 1964 Civil Rights Act as well as other statutes. The complaint specifically focuses on requirements to address individuals by their preferred pronouns, but also sets out broader objections, stating in part:

80. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that she is to “take no part in the unfruitful works of darkness,” but to “expose them.”... 

81. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that silence in the face of evil is evil itself....

84. Plaintiff also has the sincerely held religious belief that for her to fail to speak out against things she knows are wrong results in the eternal condemnation of her soul....

228. Plaintiff’s sincerely held religious beliefs that compelled her to view all people as created by God in His image and equally deserving of respect did not comport with Defendants’ newly minted program of requiring all employees to view white people as “born oppressors” and somehow undeserving of identical respect and treatment. 

Liberty Counsel issued a press release announcing the filing of the lawsuit.

EEOC Suit Charging Failure to Accommodate Messianic Jewish Employee's Holidays Is Settled

The EEOC announced last week that Center One and Capital Management Services, two related companies, have settled a Title VII lawsuit that was brought by the EEOC and subsequently remanded for trial by the 3rd Circuit.  The suit charged failure to accommodate an employee's religious practices. The employee joined the case as a plaintiff.  According to the EEOC:

The EEOC’s lawsuit alleged that in October 2016, a Center One employee, an adherent of Messianic Judaism, requested a reasonable accommodation of his religious belief requiring abstaining from work on religious observance days.... Center One refused to grant the employee a schedule modification to observe religious holidays because he was unable to provide a certification from a religious leader or religious organization supporting his request. Instead, the company imposed disciplinary points against the employee..., even after being informed he was unable to obtain the requested certification because he was not a member of a congregation, thereby forcing the employee to resign....

The parties subsequently agreed to settle the case before trial, and on Oct. 24, the federal court approved the 18-month consent decree resolving the litigation. In addition to paying $60,000 to the employee, Center One and Capital Management Services are prohibited going forward from unlawfully denying reasonable accommodations for employees’ sincerely held religious beliefs, observances, and practices, and they are specifically barred from requiring that employees provide a certification from a religious leader, organization, or group as a general precondition for obtaining religious accommodation....

6th Circuit Finds That Employee's Objections to Covid Testing Were Not Religious

 In DeVore v. University of Kentucky Board of Trustees, (6th Cir., Oct. 11, 2024), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a lawsuit by a former department manager at the University of Kentucky who was denied a religious accommodation that would exempt her from the University's policy that required weekly testing of employees who were not vaccinated against Covid. Plaintiff filed a suit claiming religious discrimination in violation of Title VII. She alleged in part that the University's policy was designed to coerce her to get tested. the court said:

Such coercion, she explained, was “wrong” because “[t]rying to manipulate somebody into doing something to attain a result that you want by holding something over them” is “not right behavior.”...

DeVore drew no connection between her fairness conclusion and any “religious principle” she follows, leaving it simply to reflect her “personal moral code.”... DeVore’s “subjective evaluation” of the Policy against this rubric of “secular values” does not establish a religious conflict with the Policy.

EEOC Sues Over Refusal to Accommodate Muslim Applicant's Worship Schedule

On Sept. 30 the EEOC filed a suit under Title VII charging a Washington-state based staffing and recruiting agency with religious discrimination and retaliation against a Muslim job applicant. According to an Oct. 3 EEOC Release:

Logic Staffing invited the applicant to interview ... the day after receiving his online application. On the strength of his application and interview, the staffing supervisor started to explore available openings when the applicant, who is Muslim, disclosed a possible need for a longer mid-day break to attend Friday prayer.... Logic Staffing's supervisor ended the interview and noted that the applicant was not hired due to his schedule and need to attend Friday prayer....

“Title VII requires employers, employment agencies, and unions to make adjustments to the workplace environment to allow applicants and employees to practice their faith, absent undue hardship,” said Elizabeth Cannon, director of the EEOC’s Seattle Field Office. “Instead of exploring alternatives and contacting its business clients to determine if accommodation was possible, Logic Staffing turned away a promising candidate and violated the law."

Court Refuses to Stay Discovery in Gay Teacher's Title VII Suit Against Catholic School

In Califano v. Roman Catholic Diocese of Rockville Centre, New York, (ED NY, Sept. 24, 2024), a New York federal district court refused to stay discovery in a Title VII sex discrimination suit brought by an openly gay math and English teacher at a Catholic elementary school. The court said in part:

... [A]t the motion to dismiss stage, “a [p]laintiff only has a minimal burden of alleging facts suggesting an inference of discriminatory motivation.”...

Plaintiff has plainly satisfied this standard.  Here, Plaintiff never received any criticisms about his job performance.  Instead, the Complaint alleges he was terminated based exclusively on his sexual preference after Defendants saw a social media post of him kissing his partner— another male.  More importantly, there is direct evidence for the termination: Defendants’ own personnel alluded to his homosexuality as a reason for the termination....

... [T]he question of application of the ministerial exception is fact specific.  That said, resolution on a motion to dismiss would be inappropriate....

... Plaintiff’s duties are not as intertwined with religious doctrine.  He was not a rabbi, priest, or member of the clergy with formal doctrinal training.  Therefore, deciding his Title VII claim would not impinge on the church autonomy doctrine and Defendants’ defense fails.  And here, Defendants fail to point to demonstrate that they would have fired Plaintiff even in spite of his identifying as a homosexual male....  

Although the ministerial and church autonomy doctrines appear to be inapplicable to Plaintiff’s claim, at the very least, discovery is necessary to proceed with this case--namely to discern whether the exceptions even apply to Plaintiff’s role as a Math and English teacher here.

EEOC Rules on Accommodating Abortions and Barring Transgender Discrimination Burden Religious Exercise of Catholic Diocese

In Catholic Benefits Association v. Burrows, (D ND, Sept. 23, 2024), a North Dakota Catholic diocese and a Catholic organization supporting Catholic employers challenged rules of the Equal Employment Opportunity Commission promulgated under the Pregnant Workers Fairness Act, as well as Enforcement Guidance issued by the agency relating to discrimination on the basis of gender identity.  In the case, a North Dakota federal district court issued a preliminary injunction barring the EEOC from enforcing against plaintiffs requirements that they accommodate employees' abortions or infertility treatments that are contrary to the Catholic faith. It also enjoined the EEOC from enforcing anti-harassment provisions in a way that would require plaintiffs to speak or refrain from speaking in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; require plaintiffs to use pronouns inconsistent with a person's biological sex; or allow person to use private spaces reserved for the opposite sex. The court said in part:

It is a precarious time for people of religious faith in America. It has been described as a post-Christian age.... One indication of this dire assessment may be the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.  

The current suit falls into a long line of cases that should be unnecessary in a country that was built on the concept of freedom of religion. Unfortunately, these cases are essential for faithful individuals where government mandates run counter to core religious beliefs. One would think after all this litigation, the government would respect the boundaries of religious freedom. Instead, it seems the goal may be to find new ways to infringe on religious believers’ fundamental rights to the exercise of their religions....

The CBA has detailed its sincerely held beliefs about human sexuality and procreation.... This belief includes a witness that these actions are immoral.... At the very least its actions would violate the retaliation provision because the employee would be fired for violating the Catholic faith by asking for an accommodation for the conduct at issue here. Because the interpretations of PWFA and Title VII threaten litigation for adhering to sincerely held beliefs, these guidelines and the underlying statutes place a substantial burden on the exercise of religion.

News From the States reports on the decision. [Thanks to several readers for the lead.] 

10th Circuit: School Administrator Fired Over Religious Comments Has Discrimination, But Not Retaliation, Claim

 In McNellis v. Douglas County School District, (10th Cir., Sept. 10, 2024), the U.S. 10th Circuit Court of Appeals affirmed dismissal of retaliation claims by a high school Assistant Principal/ Athletic Director, but reversed dismissal of his religious discrimination claims under Title VII and the Colorado Anti-Discrimination Act.  Plaintiff Corey McNellis was fired after he complained about the depiction of Christians in an upcoming school play about the 1998 hate-motivated murder of Matthew Shepard in Wyoming. The court concluded the McNellis's speech was not protected by the 1st Amendment because it was made in the course of performing his official duties. It also concluded the McNellis's complaints about being investigated because of his Christian beliefs were not the cause of his firing. In allowing plaintiff to proceed with his discrimination claims, the court said that plaintiff had alleged sufficient facts to give rise to an inference of discrimination.

Jail Guard's Required Training in Treatment of LGBTQI+ Inmates Did Not Violate His Free Exercise Rights

In Goodknight v. County of Douglas, (D OR, Aug. 6, 2024), an Oregon federal district court rejected religious discrimination claims brought by a county jail guard who objected to required LGBTQI Community Training. The training was impelled by the recently enacted federal Prison Rape Elimination Act.  According to the court:

Plaintiff alleges this Training required employees “to affirm and validate homosexual unions and the self-proclaimed ‘transgender,’ ‘non-binary,’ or ‘genderqueer’ identities of AICs and fellow employees.”...

Plaintiff concluded by confirming his believe that “PREA standards demands [sic] we deny, [sic] God, science, and the common sense verified by our very eyes. This is a Pandora’s box of perversion I refuse to help open. I appeal to you one last time, please repent of this sinful path for the sake of the county, inmates, and my fellow deputies....

Rejecting plaintiff's claims under Title VII and state law, the court said in part:

Despite Plaintiff’s attempt, intentionally or otherwise, to conflate private citizen cases with public employee cases, the fact that the dispute here concerned training regarding how Defendant processed and housed LGBTQI+ individuals—i.e., that the Training concerned how Defendant wanted Plaintiff to perform his basic job duties—demonstrates Plaintiff’s free speech claim necessarily fails. ... 

Plaintiff’s specific factual allegations, along with the Court’s own common sense, confirm that the speech here concerned nothing more than Plaintiff’s dispute with his supervisors over how to perform his job when dealing with certain AICs....

Plaintiff alleges Defendant violated his rights under the First Amendment’s Free Exercise clause when Defendant “lent it’s power to one side in a controversy over religious dogma – specifically, the controversy over whether what [sic] constitutes respectful treatment of persons who self-identify as LGBTQI+.”... This argument is meritless.  ...

Plaintiff’s attempt to conflate ‘government employers forcing their employees’ with “the government forcing its citizens’ ignores longstanding, black‐letter law recognizing that “[a] public employer ‘may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.’”

Trans Woman Fired by Liberty University Sues

Suit was filed this week in a Virginia federal district court against Liberty University by a transgender woman who was fired from her position as an Apprentice at the IT Help Desk because she was undergoing gender transition treatment. The complaint (full text) in Zinski v. Liberty University, Inc., (WD VA, filed 7/29/2024), alleges that terminating plaintiff's employment violated Title VII's ban on sex discrimination. A press release from ACLU of Virginia elaborates on plaintiff's dismissal, saying in part:

Liberty University officials read a termination notice aloud to Ellenor citing “denying biological and chromosomal sex assigned at birth” as the basis for her termination, stating a conflict with Liberty’s Doctrinal Statement that names “denial of birth sex by self-identification with a different gender” as a “sinful act prohibited by God.” 

7th Circuit Gives Broad Interpretation of "Religious" Claims Under Title VII

In Passarella v. Aspirus, Inc., (7th Cir., July 29, 2024), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Scudder held that a request for a religious accommodation under Title VII may include secular elements. At issue were employees' requests for an exemption from the employer's Covid vaccine mandate. The court said in part:

At the pleading stage, an employee seeking an accommodation in the form of an exemption from an employer’s vaccine mandate must allege facts plausibly permitting an inference that some “aspect[]” of the request is based on the employee’s “religious observance and practice” or “belief.” 42 U.S.C. § 2000e(j). 

Applying the statutory language necessarily requires an exercise of judgment: the standard is not amenable to formulaic resolution like solving a math equation. To the contrary, its application requires a holistic assessment of the terms of the employee’s exemption request, with the controlling inquiry at the pleading stage being whether the employee plausibly based her vaccination exemption request at least in part on an aspect of her religious belief or practice.  

... An employee may object to an employer’s vaccine mandate on both religious and non-religious grounds—for example, on the view that receiving the vaccine would violate a religious belief and implicate health and safety concerns. Congress permitted this, as we see no other way to give effect to the breadth of its definition of “religion”—as covering “all aspects” of an employee’s religious observance, practice, and belief.... And, for its part, the Equal Employment Opportunity Commission, in implementing this same definition, has likewise emphasized that a religious objection to a workplace requirement may incorporate both religious and secular reasons.... 

Judge Rovner dissented, saying in part:

I recognize that Dottenwhy, in the statements she submitted to Aspirus, invoked her rights as a Christian, said she had prayed about the matter and sought guidance from G-d, and expressed her conviction that “HE is with me on this decision.” ... Without more, such statements are not enough, in my view, to transform an otherwise secular objection to the vaccine into a religiously-based one.... I am not convinced that Congress meant to compel an employer to grant any requested accommodation that an employee has prayed about and has concluded that his or her G-d supports. If that were so, there would be almost no limit to the accommodations that an employer would have to entertain under Title VII’s ban on religious discrimination....

Passarella’s statement came somewhat closer to describing a religious basis for a vaccine exemption, but in the end, I believe that Aspirus correctly understood her objection to the COVID-19 vaccine to be secular rather than religious....

It cannot be enough to state a claim for a religious accommodation to assert that because one’s conscience is G-d given, any decision one reaches in their good conscience is necessarily inspired and endorsed by G-d, and therefore is religious in nature.

In Bube v. Aspirius Hospital, Inc., (7th Cir., July 29, 2024), a different panel of the 7th Circuit, with only Judge Scudder being on both, reversed the dismissal of claims by two employees for religious exemptions from a hospital's Covid vaccine mandate. The court, in a unanimous opinion written by Judge Scudder, said in part:

We have no trouble concluding that both of these requests are based at least in part on an aspect of the plaintiffs’ religious beliefs. God “gave” Bube a “mind, body and soul” so that she feels obligated to avoid what she considers unsafe substances in order to remain healthy. And Hedrington was “created … perfectly” by God so that accepting a “risk[y]” vaccine would be a “sin.” ...

Scrutinizing the composition of these requests—especially at the pleading stage—runs counter to not only the broad language of Title VII but also the Supreme Court’s repeated warnings that the law requires a hands-off approach when it comes to defining and discerning the core limits of religious exercise.