Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Religious Accommodation That Violates OSHA Rules Not Required

In Hamilton v. City of New York, (ED NY, Sept.28, 2021), a New York federal district court dismissed religious discrimination and failure to accommodate claims brought by a Jewish New York City firefighter. Plaintiff, who wore a beard for religious reasons, was transferred from full-duty to light duty because OSHA regulations preclude firefighters with beards from wearing close fitting respirators. The court held that NYFD cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.

No Violation In Refusing To Accommodate Prosecutor's Religious Request For Permanent Remote Work

In Leone v. Essex County Prosecutor's Office, (D NJ, Sept. 23, 2021), a New Jersey federal district court ruled against an assistant prosecutor in the Essex County Prosecutor's Office who sought a religious accommodation that would allow him to continue to work from home indefinitely as pandemic remote-work schedules were phased out. Plaintiff claims that his religion "'requires him to pray, including aloud and spontaneously, throughout each day,' preferably in his backyard to access 'peace and solitude.'" Plaintiff rejected numerous proposed accommodations that would allow him to pray while at his office. The court applied rational basis review to plaintiff's 1st Amendment claim, concluding that defendants had articulated "a myriad of reasons" justifying their denial of plaintiff's requested accommodation. It also concluded that there had not been a violation of the New Jersey Law Against Discrimination.

Suit Says Trader Joe's Failed To Accommodate Religious Objection To COVID Vaccination

Suit was filed earlier this month under Title VII and California state law by a 26-year Christian employee of Trader Joe's who was fired after the company refused to adequately accommodate his religious objections to being vaccinated against COVID. Plaintiff Gregg Crawford was initially granted a religious exemption from the company's mandatory vaccination policy. However an important management meeting was limited to vaccinated employees, and the company refused to arrange an accommodation that would allow Crawford to attend in person or remotely. He was told his non-attendance would negatively affect his performance review. Shortly after Crawford complained about this and consulted an attorney, he was fired. The complaint (full text) in Crawford v. Trader Joe's Company, (CD CA, filed 9/7/2021), alleges violations of Title VII of the 1964 Civil Rights Act and of state anti-discrimination laws. KTLA News reports on the lawsuit.

EEOC Suit Protecting Religious Objector To Fingerprinting Is Settled

The EEOC announced last week that Minnesota- based AscensionPoint Recovery Services has settled an EEOC religious discrimination lawsuit brought against it by agreeing to pay $65,000 in damages and implementing changes to its policies. According to the EEOC, the company fired a Christian employee who objected to being fingerprinted:

The fingerprinting requirement was prompted by a background check procedure requested by of one of the company’s clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him. APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting were available.

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

Muslim Police Officer Can Move Ahead With Complaint On Accommodation Of Beard

In Hashmi v. City of Jersey City, (D NJ, Sept. 7, 2021), a New Jersey federal district court allowed a Sunni Muslim police officer to move ahead on some, but not all, of his challenges to a Jersey City Police Department order. The Order (later amended) required officers who wear beards for religious reasons to maintain them at no more than one-half inch in length unmanicured. Plaintiff claims this conflicts with an accommodation letter previously issued to him which requires his beard to be "neat and clean." He also claims subsequent harassment and retaliation. The court rejected plaintiff's free exercise claim, finding that the Order is neutral and generally applicable. The court also rejected plaintiff's equal protection challenge, and his Title VII religious discrimination claim. However the court permitted him to move ahead with his Title VII failure-to-accommodate claim and his Title VII and state law retaliation claims.

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.

EEOC Sues Over Employer's Failure To Accommodate Religious Objection To Finger Printing

 The EEOC announced last week that it has filed suit in a Minnesota federal district court against AscensionPoint Recovery Services alleging religious discrimination:

APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him.... APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting are available.

Supreme Court Sides With Catholic Social Services In Its Refusal To Certify Same-Sex Couples As Foster Parents

The U.S. Supreme Court today in Fulton v. City of Philadelphia,  (Sup. Ct., June 17, 2021), held unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract with CSS to provide foster care services unless it agrees to certify same-sex couples as foster parents.  Chief Justice Roberts wrote the opinion of the court which was joined by five other justices, avoiding the question of whether to overrule Employment Division v. Smith. The Court said in part:

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.... CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so.... But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable....

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature....

[S]ection 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS.... But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U. S., at 884....

The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

Once properly narrowed, the City’s asserted interests are insufficient.

Justice Barrett filed a concurring opinion, joined by Justice Kavanaugh and (except for one paragraph) by Justice Breyer, saying in part:

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

Justice Alito, joined by Justices Thomas and Gorsuch filed a 77-page opinion concurring in the judgment, arguing that the Smith case should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito also filed an opinion concurring in the judgment and contending that Smith should be overruled.

CNBC reports on the decision. 

Summary Judgment Denied To Plaintiffs Challenging Refusal of High School Tournament To Accommodate Sabbath Observance

In Chung v. Washington Interscholastic Activities Association, (WD WA, May 10, 2021), five current and former high school students sued the state's Interscholastic Activities Association for failing to accommodate Seventh Day Adventists' Sabbath observance in scheduling and administering the high school state tennis championships. The court refused to grant plaintiffs' summary judgment on any of their claims. It found that four of the plaintiffs lacked standing since they had not yet reached the state championship tournament. As to the remaining plaintiff who had standing, the court held that material issues of fact remain on the question of whether her federal free exercise claim is subject to strict scrutiny. Analyzing her state free exercise claim, the court held that plaintiff failed to demonstrate a substantial burden on her religious exercise since she was merely denied the right to participate in post-season play in the sport of her choice.

Seventh Day Adventist Loses Failure To Accommodate Claim

In Staple v. School Board of Broward County, Florida, (SD FL, April 30, 2021), a Florida federal district court dismissed a Seventh Day Adventist's Title VII religious discrimination claim. Plaintiff was a shift supervisor for the county's school bus drivers.  He wanted to alter his hours in the winter months so he would not need to work after sundown on Fridays.  His supervisor instead insisted that he use his hours accrued for vacation and sick leave. The court held that this did not amount to discharge or discipline, which is a prerequisite to a failure to accommodate claim. Mere adverse employment action short of that, while it supports a disparate treatment claim, does not, according to the court, support a failure to accommodate claim. The court also dismissed his claim under the Florida Religious Freedom Restoration Act, finding that he did not allege a substantial burden on his religious exercise.

Virginia GOP Rejects Rule Change To Allow Absentee Voting For Religious Reasons In Upcoming Saturday Convention

Washington Post reports that in a vote last Thursday, Virginia's Republican State Central Committee refused to amend its rules to allow observant Jews and others with religious objections to vote absentee in the upcoming Saturday, May 8, nominating convention for governor and two other statewide offices.  While a narrow majority favored the change, rules required a 75% vote to change party rules. Those who opposed the change said that the issue was raised too close to the election date. The request was made in a letter from four rabbis earlier this month. The absentee option is already available for active-duty military. [Thanks to Scott Mange for the lead.]

Jewish Sailor Gets Temporary Reprieve From Order To Shave Beard

Suit was filed yesterday in the D.C. federal district court by a Jewish sailor who was ordered to shave his beard which he maintains for religious reasons. Other plaintiffs in the case are Muslim sailors.  The complaint (full text) in Di Liscia v. Austin, (D DC, filed 4/15/2021), alleges in part:

1. Plaintiff Edmund Di Liscia, a devout Chassidic Jew and a Sailor in the United States Navy with a rating as an Electricians Mate, Nuclear Power 3rd Class Petty Officer (EMN3), seeks emergency relief to stop Defendants from forcing him to shave in violation of his sincerely held religious beliefs.

2. Over two years ago, shortly after joining the Navy, EMN3 Di Liscia received a “no-shave chit” permitting him to maintain his beard as a religious accommodation for his faith. That accommodation remained effective during his current deployment aboard the U.S.S. Theodore Roosevelt. Indeed, throughout the deployment, his fellow Sailors aboard the USS Roosevelt have all received MWR (Morale, Welfare, and Recreation) no-shave chits that allow them to shave only once every fourteen days.

3. But on or around April 14, 2021, EMN3 Di Liscia’s chief informed him that he must shave on the morning of April 16, 2021, and regularly thereafter....

Plaintiff moved for a TRO (memo in support of TRO). The military agreed that it would not require Di Liscia to shave, at least for the time being. The court issued a temporary restraining order (full text) barring the military from requiring him to shave or trim his beard. Military.com reports on the case.

11th Circuit: Rastafarian Paramedic Was Offered Reasonable Accommodation

In Bailey v. Metro Ambulance Services, Inc., (11th Cir., April 6, 2021), the U.S. 11th Circuit Court of Appeals held that an ambulance company had offered a Rastafarian paramedic a reasonable accommodation of his religious beliefs as required by Title VII. The court said in part:

AMR offered Bailey a reasonable accommodation. It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply. Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations. As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.

Judge Rosenbaum filed a concurring opinion. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

EEOC Sues On Behalf of Seventh Day Adventist Hotel Employee

EEOC announced yesterday that it has filed a religious discrimination suit against a Florida resort hotel, Noble House Solé. The suit alleges that a new director of housekeeping fired a Seventh Day Adventist room attendant who refused to work on Saturdays. For the prior ten months, the employee's Sabbath observance had been accommodated.

EEOC Lawsuit On Behalf of Fired Seventh Day Adventist Employee Settled

The EEOC announced this week that PepsiCo subsidiary Frito-Lay, Inc. has agreed to a 3-year consent decree requiring it to pay $50,000 to settle a religious discrimination lawsuit filed by the EEOC. The suit was filed on behalf of a Seventh Day Adventist employee of the company. The newly-promoted employee was fired after he refused on religious grounds to attend two Saturday training sessions. The consent decree also requires specialized training of human resources personnel and review at the regional staff level of future requests for religious accommodation. The EEOC commended the company for its cooperation in resolving the lawsuit.

Court Orders Religious Dietary Accommodation For Capitol Riot Shaman

On Jan. 9, the U.S. Department of Justice announced that  Jacob Anthony Chansley was one of three men charged in connection with the the invasion of the Capitol building on Jan. 6. According to the DOJ release:

... Chansley was identified as the man seen in media coverage who entered the Capitol building dressed in horns, a bearskin headdress, red, white and blue face paint, shirtless, and tan pants. This individual carried a spear, approximately 6 feet in length, with an American flag tied just below the blade.

By late January, Chansley was held in custody in the D.C. jail where he filed a request for a religious dietary accommodation. He sought a diet of only organic food because he is a Shamanic practitioner. When the request was denied, Chansley filed an emergency motion in the D.C. federal district court.  In United States v. Chansley, 2021 U.S. Dist. LEXIS 22788 (D DC, Feb. 3, 2021), the court handed down a lengthy opinion ordering the dietary accommodation, saying in part that:

... RLUIPA and the First Amendment provide prisoners with powerful mechanisms to challenge aspects of their confinement that substantially burden religious free exercise....

Ordinarily ... Free Exercise challenges to neutral and generally applicable laws post-Smith merit only rational basis review, under which the DOC's dietary rules would be presumptively valid. But the Court finds that Smith does not govern the present inquiry for two independent reasons. First, unlike the neutral and generally applicable drug law at issue in Smith itself, the DOC's decision to deny defendant a dietary religious exemption is more akin to an "individualized governmental assessment" of his religious conduct....

Second, Smith is inapposite because the DOC's policy is neither neutral nor generally applicable.... [T]he DOC provides dietary religious exemptions for both Muslim and Jewish inmates. Its sole rationale for withholding an analogous accommodation for defendant is that his religious views lack "religious merit." But that derisive language simply underscores the fact that not only is the DOC withholding a religious exemption for defendant that it already grants to other religious prisoners, but that it is doing so simply because defendant belongs to a disfavored sect....

Third, defendant has shown that the DOC's refusal to provide him with an all-organic diet is a substantial burden—both subjectively and objectively—to his religious beliefs....

Apparently the D.C. jail was unable to comply with the court's order, and Chansley was transferred to another federal facility that could comply. (See Court's Memorandum of Feb. 4, 2021). ABC11 reports on developments.

Supreme Court Denies Review In Discrimination Suit By Muslim Flight Attendant

The U.S. Supreme Court today denied review in Stanley v. ExpressJet Airlines, Inc., (Docket No. 20-495, certiorari deied 1/11/2021). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals held that a Muslim flight attendant's religious discrimination claim should have been submitted to arbitration. It also rejected her retaliation claim. The flight attendant sought a religious accommodation so that she would not need to prepare or serve alcohol during flights. At issue in the case was the scope of the Railway Labor Act's mandatory arbitration provisions.

EEOC Sues On Behalf of Seventh Day Adventist

 The EEOC announced yesterday that it has filed suit in a Texas federal district court against Quest Diagnostics for refusing to accommodate the religious beliefs of a long-time employee. The EEOC said in part:

[T]he employee, a phlebotomist, is a practicing Seventh-day Adventist who began working for Quest Diagnostics in 2008. The phlebotomist’s religious beliefs prevent her from working on her Sabbath from sundown on Friday to sundown on Saturday. Quest honored her request for religious accommodation not to work on her Sabbath for the first 10 years of her employment. But in her 11th year with the company, Quest told her it would no longer accommodate her. After the revocation of her accommodation, she was forced to call “out” on each Saturday shift she was scheduled to work until she was ultimately fired by Quest.