Muslim Employee Recovers $70,000 From Employer Who Refused Grooming Rule Accommodation

The EEOC announced on Wednesday that it has entered a consent decree in its lawsuit against Blackwell Security Services, Inc.  The EEOC's lawsuit charged that the company violated Title VII by failing to give an exemption from its no-beard policy to a Muslim employee who worked as a concierge in Chicago, even though granting the accommodation would have imposed no cost and not created an operating burden on Blackwell.  According to the EEOC:

To avoid losing his job, the employee complied and shaved his beard, causing him significant distress....

Under the consent decree resolving the lawsuit, Blackwell will pay $70,000 in compensation to the now-former employee. Blackwell will also provide training to relevant management employees on federal laws prohibiting religious discrimination and will report any additional complaints of religious discrimination to the EEOC for the decree’s duration.

Court Rules On Class Action Certification of Claims by Religious Objectors to Covid Vaccine

 In Chavez v. San Francisco Bay Area Rapid Transit District, (ND CA, Jan. 28,2024), a California federal district court refused to certify as a class action a suit on behalf of employees of the Transit District (BART) who were denied a religious exemption or accommodation from BART's Covid vaccine mandate. The court concluded that the disparate factual issues underlying the claims under Title VII and California's Fair Employment and Housing Act means that common issues of law or fact do not predominate. The court said in part:

Plaintiffs submitted nearly as many systems of belief and grounds for objection as they did applications. Whether or not any one request rests on a bona fide religious belief presents an individual inquiry that requires the consideration of evidence pertaining only to the response in question....

BART’s undue hardship showing—likely to be the dispositive issue in this action—also rests on individual factual issues....

It similarly concluded that common issues did not predominate in plaintiffs' First Amendment Free Exercise Claim, saying in part:

Plaintiffs cite myriad scripture and personal experiences, CDC VARS data and concerns regarding health consequences ... among others, as grounds for objection. Many identify non-vaccination as a core religious tenant, some characterize their decision as a “personal choice,” a number discuss medical concerns.... [T]he need to determine whether plaintiffs have met the bona fide religious belief threshold generates “an unmanageable variety of individual . . . factual issues,” and forecloses on class certification....

Finally, the court concluded that plaintiffs also failed to meet the requirement that a class action is the superior way to adjudicate the claims.

In UnifySCC v. Cody, (ND CA, Jan. 29, 2024), a different Northern District of California judge certified a class action (except as to damages) on behalf of 463 individuals who obtained a religious exemption from the Covid vaccine mandate of San Jose County but who, because they were in high risk roles, were placed on administrative leave until reassignments or transfers to lower risk positions became available.  The court ruled:

This Class is certified with respect to the following common questions regarding Defendants’ liability: 

1. Whether Defendants violated Plaintiffs’ right to free exercise and equal protection of the law by prioritizing medical exemptions over religious exemptions in high-risk settings; 

2. Whether Defendants’ Risk Tier System violated the Free Exercise Clause and Equal Protection Clause because it relegated Plaintiffs and the Class members to unpaid leave but allowed some unvaccinated or non-boosted employees to continue to work; 

3. Whether the County’s religious exemption and/or accommodation procedure was either non-neutral or not generally applicable such that it constitutes an individualized assessment ... and is thereby subject to strict scrutiny; 

4. Whether Defendants provided Individual Plaintiffs and the Class members with reasonable accommodation as required under FEHA and Title VII; and 

5. Whether Defendants violated the Establishment Clause by demonstrating hostility towards religion. 

The Class is NOT certified with respect to questions of damages.

Court Decides 7 Cases of Health Care Employees' Refusal to Receive Covid Vaccine

 A Delaware federal district court judge yesterday handed down opinions in seven lawsuits against the same medical center that terminated employees who requests for religious exemptions from the Covid vaccine mandate were denied. In 5 of the cases, the court refused to dismiss plaintiffs' Title VII failure to accommodate claims because plaintiffs had plausibly alleged a sincere religious belief and that their objections to the Covid vaccine were related to that belief. Aiken v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Hernandez v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Massotti v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Proud v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); White v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024). In 2 cases, the court concluded that plaintiffs' objections to the vaccine were not plausibly connected to a sincerely held religious belief. McDowell v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Osborne v. Bayhealth Medical Center, Inc., (D DE, Jan.25, 2024). Each opinion details the religious claim asserted by plaintiff.

Nurse Sues Clinic for Refusing to Accommodate Her Objection to Prescribing Contraceptives

A religious discrimination lawsuit was filed last week in a Florida federal district court by a nurse-practitioner who was fired from her position at a Florida CVS MinuteClinic. The complaint (full text) in  Kristofersdottir v. CVS Health Corp., (SD FL, filed 1/18/2024), alleges that CVS revoked all religious accommodations that allowed employees to refuse to prescribe contraceptives, including the accommodation it had given to plaintiff for more than 7 years.  Plaintiff, a Roman Catholic, objected to prescribing hormonal contraceptives for patients. According to the complaint:

CVS corporate culture changed around 2021. Instead of protecting religious freedom, CVS began to treat religious practice as a source of "privilege."...

CVS never discussed possible accommodation options with Ms. Kristofersdottir even though CVS had numerous ways to provide a reasonable accommodation without undue hardship on the business.

When Florida subsequently passed a law protecting conscience-based objections by employees, CVS offered plaintiff her job back, but she declined the offer. The complaint alleges violations of Title VII and the Florida Civil Rights Act.

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

EEOC Religious Discrimination Suit Against Hospital That Refused Vaccine Exemption Settled For $50,000

The EEOC announced yesterday that Trinity Health Grand Rapids, a Michigan hospital, has agreed to pay $50,000 in damages to settle a Title VII religious discrimination lawsuit brought on behalf of a job applicant whose job offer was rescinded when the applicant applied for a religious exemption to the requirement that employees receive a flu shot. The applicant had received a conditional offer for a position as business office coordinator. The consent decree also enjoins the hospital from refusing to hire applicants because of their sincerely held religious beliefs opposing taking flu vaccine, or denying religious exemptions from vaccination in the future, unless doing so would impose an undue hardship. It also calls for compliance training of personnel.

Denial of Vaccine Mandate Exemption for Nurse Is Upheld

 In St. Hillaire v, Montefiore Medical Center, (SD NY, Jan. 16, 2024), a New York federal district court rejected claims of religious discrimination brought by a hospital's Patient Safety Manager who was denied a religious exemption from a state Covid vaccine mandate and subsequently was fired. Plaintiff is an Apostolic Pentecostal Christian.  Denying Plaintiff's claim under Title VII, the court said in part:

As a New York hospital system, Defendant is legally obligated to comply with the DOH Mandate and is subject to stringent penalties for non-compliance, including loss of its license.... Defendant could not have accommodated Plaintiff’s request because Plaintiff was a registered nurse... and was a person covered by the DOH Mandate. Had Defendant granted Plaintiff’s request for an exemption, it would have been in direct violation of New York State law, thus suffering an undue hardship.

The court also rejected plaintiff's 1st Amendment free exercise claim because defendant is not a state actor. 

School Did Not Violate Title VII in Denying Religious Exemption to Covid Rules

In Russo v. Patchogue-Medford School District, (ED NY, Jan. 12, 2024), a New York federal district court held that a school district did not violate title VII's ban on religious discrimination in employment when it refused to accommodate a school psychologist's religious objection to a state mandate to either test weekly for Covid or show proof of vaccination.  Plaintiff considered both of these alternatives to be medical interventions that would violate her faith in God's ability to protect her and keep her healthy.  She instead sought as an accommodation either periodically completing a health questionnaire or working remotely. Rejecting those alternatives, the school placed her on unpaid leave. The court said in part:

The state’s test-or-vaccination requirement was a neutral law of general applicability that only incidentally affected employees with religious objections and did not “target[] religious conduct for distinctive treatment.” ... The requirement is, therefore, constitutionally permissible if it survives rational basis review.... The state’s requirement clearly satisfies this standard....

Plaintiff’s claim that she was unlawfully denied a religious accommodation also fails....

A proposed accommodation becomes an undue hardship for an employer if it would cause the employer to violate the law....

Defendant’s rejection of Plaintiff’s proposed accommodation of working remotely also did not violate Title VII.... [H]er proposal that she be permitted to work remotely going forward included a request that Defendant cut back on her job responsibilities to accommodate remote work.... Plaintiff, therefore, implicitly conceded that her proposed accommodation would “involve the elimination of an essential function of [her] job,” thereby rendering the proposal unreasonable....

The court also concluded that plaintiff's employer did not violate the Genetic Information Nondisclosure Act.

Denial of Religious Exemption to Vaccine Mandate Did Not Violate Title VII

 In Craven v. Shriners Hospital for Children, (D OR, Jan. 2, 2024), an Oregon federal district court dismissed a Title VII religious discrimination claim brought by a hospital maintenance technician who was fired after his claim for a religious exemption from the hospital's Covid vaccine mandate was denied. The court concluded that plaintiff had not adequately alleged that his objections to the vaccine were religious in nature. It also concluded that filing an amended complaint would be futile.  The court said in part:

As Plaintiff wrote, he objected to the COVID-19 vaccine because its “ingredients include carcinogens, neurotoxins, animal viruses, animal blood, allergens, and heavy metals,” which “can cause serious harm and even death to the body.” ... This judgment—on the potential danger of the vaccine due to its physical composition—was scientific and medical, not religious. Of course, this Court does not question the sincerity of Plaintiff’s belief that his “body is a temple of the Holy Spirit.”...  But Plaintiff’s beliefs about the composition of his body and that of the vaccine are independent of one another; whether Plaintiff’s body is a temple has no bearing on whether the vaccine contains carcinogens or whether, as a result of its ingredients, it “can cause serious harm.” 

Therefore, Plaintiff’s allegations, even if fleshed out in a subsequent filing, would fail to state a claim of religious discrimination under Title VII.

EEOC Announces Settlements In 2 Religious Discrimination Lawsuits

In the last several days, the EEOC has announced settlements in two unrelated Title VII religious discrimination suits filed by the agency.  Last week the EEOC announced that Children's Healthcare of Atlanta will pay $45,000 in damages to a former maintenance employee who was denied a religious exemption from the healthcare system's flu vaccine requirement. The employee, who worked primarily outside and had limited contact with the public or other staff, had been granted an exemption in 2017 and 2018, but was denied one and fired in 2019. Under the consent decree settling the suit, Children's Healthcare will also modify its religious exemption policy to presume eligibility for employees who work away from patients and other staff.

Yesterday the EEOC announced that Triple Canopy, Inc., a company that provides protective services to federal agencies, will pay $110,759 in damages to an employee who was denied a religious accommodation of his Christian belief that men must wear beards. The company denied the accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a documented religious leader. The company will also institute a new religious accommodation policy.

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

RFRA and Title VII Claims for Refusing Religious Exemption from Covid Vaccine Mandate Can Proceed

In Snyder v. Chicago Transit Authority, (ND IL,  Nov. 6, 2023), an Illinois federal district court allowed plaintiff, who was denied a religious exemption from his former employer's Covid vaccine mandate, to move ahead with his claims under Title VII and under the Illinois Religious Freedom Restoration Act. The court however dismissed seven other claims brought under a number of other statutory and regulatory provisions.

Employees' Objections to Covid Vaccine Were Not Religious

In Foshee v. AstraZeneca Pharmaceuticals LP, (D MD, Oct. 17, 2023), a Maryland federal district court dismissed a Title VII religious discrimination claim by two employees who were denied a religious exemption from a company's Covid vaccine mandate, finding that their objections were not religious in nature. The court said in part:

Both Foshee and Pivar made similar assertions – that they are guided in their important decisions by God or the Holy Spirit, respectively, that they personally do not see the value in and are concerned about the risks associated with the COVID-19 vaccines, and that they have not felt God or the Holy Spirit calling them to disregard their consciences and get the vaccine....

Foshee’s position, that God gave him a conscience that tells him what to do, similarly amounts to a “blanket privilege.” The same conscience-based justification could be used to evade any job requirement that Foshee disagreed with. Pivar’s position that he listens to the guidance of the Holy Spirit which guides him in his difficult decisions is in the same vein....

Of course, harboring secular reasons alongside religious reasons does not automatically disqualify the religious beliefs, but in this circumstance, the reasons are inextricably intertwined in a way that dilutes the religious nature. For example, plaintiffs do not want to take the vaccines, therefore their consciences tell them not to do it, and they believe it is God’s will or in accord with the Holy Spirit that they follow their consciences. That reasoning is not subject to any principled limitation in its scope. Their beliefs thus confer the type of unverifiable “blanket privilege” that courts cannot permit to be couched as religious in nature.

Restaurant Settles EEOC Religious Discrimination Suit

The EEOC announced last week that a now-closed restaurant in Atlanta that was part of Landry's, a national restaurant group that continues to operate, has settled a Title VII religious discrimination lawsuit through a consent decree filed in a Georgia federal district court.  The EEOC said in part:

The EEOC alleged in its suit that Del Frisco’s violated federal law by failing to accommodate an employee’s religious practices and then discharging her. The employee, a server at the restaurant, had an existing religious accommodation of not working on Tuesdays so she could attend worship services. In 2019, when New Year’s Eve fell on a Tuesday, Del Frisco’s revoked her accommodation and tried to force her to work—alleging it was mandatory for servers to work the holiday. Despite saying it was a mandatory workday, Del Frisco’s gave other servers who did not need a religious accommodation the day off....

Under the consent decree resolving the lawsuit, Del Frisco’s will pay $25,000 in monetary damages to the former employee and train its management employees on religious discrimination at approximately 30 Del Frisco’s sister restaurants.

EEOC Sues Chipotle For Manager's Harassment of Muslim Teen

 The EEOC announced that last week it filed a Title VII suit against the restaurant chain Chipotle contending that a manager at a Kansas restaurant location harassed a teenage employee for wearing a hijab. According to the EEOC:

During the summer of 2021, an assistant manager began repeatedly asking [the employee] to remove her hijab, or headscarf, pressuring her to show him her hair. Despite the teen’s rejections and complaints to management, Chipotle failed to act to stop the manager’s harassment. Chipotle’s inaction resulted in the manager escalating his abuse, ultimately grabbing and forcibly removing part of the teen’s hijab.

After the teen reported the incident, Chipotle again failed to take prompt corrective action, and she was forced to submit her two weeks’ notice. The EEOC further alleges that Chipotle retaliated against the teen by refusing to schedule her to work additional shifts unless she agreed to transfer locations, while allowing her harasser to continue working at the same location.

EEOC Sues on Behalf of Muslim Employee

 On Tuesday, the EEOC announced that it has filed a Title VII lawsuit against Blackwell Security Services, Inc., a hotel and condominium staffing company, for refusing to accommodate a Muslim employee's religious practice.  According to the EEOC:

[T]he employee, who worked as a concierge in Chicago, Illinois, is a practicing Muslim who wears a beard as required by his religious beliefs. Soon after he was hired, he was told by a Blackwell supervisor that it was company policy that all employees be clean shaven. The employee requested an exemption from the policy to accommodate his religious practice. However, according to the EEOC’s complaint, Blackwell told him to shave his beard or be terminated. To avoid losing his job, the employee complied.

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit.  A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were  dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims.  The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.