Alabama High School Athletic Association Changes Rules To Accommodate Sabbath Observance

1819 News reports that yesterday the Alabama High School Athletic Association voted to amend its rules to accommodate religious requests for scheduling changes. The rule change comes in response to a lawsuit filed in May by Oakwood Adventist Academy after it was forced to forfeit a Saturday afternoon 1A high school playoff game that conflicted with its Sabbath observance. Becket issued a press release announcing the rule change.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

Postal Worker Seeks Supreme Court Modification Of Title VII Precedents On Reasonable Accommodation

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Groff v. DeJoy. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) Appellants are asking the Supreme Court to repudiate the definition of "undue hardship" which the Court approved in its 1977 decision in TWA v. Hardison. First Liberty issued a press release announcing the filing of the petition for review.

DOJ Sues City For Failure To Accommodate Seventh Day Adventist Employee

A Title VII lawsuit was filed last week by the Justice Department on behalf of a newly-hired Seventh Day Adventist detention officer against the city of Lansing, Michigan. The complaint (full text) in United States v. City of Lansing, Michigan, (WD MI, filed 7/15/2022) alleges that the city "failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath..." The Justice Department issued a press release announcing the filing of the lawsuit.

Employees' Religious Objections To Apron Logo May Support Title VII Claim

In EEOC v. Kroger Limited Partnership I, (ED AR, June 23, 2022), an Arkansas federal district court refused to dismiss a religious discrimination claim brought by the EEOC against Kroger for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a new campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community. Their religious beliefs prevent them from promoting homosexuality which they believe is a sin. The court said in part:

Kroger acknowledges that the Court can't sit in judgment of the objective reasonableness of a sincerely held religious belief ...  [But] according to Kroger ... it is objectively unreasonable to believe that the Our Promise symbol supports and promotes the LGBTQ community. Thus, Kroger concludes, there is no conflict at all between Lawson and Rickerd's religious beliefs and Kroger's dress code. ...

Kroger slices things far too thin by isolating the "religious belief" question from the "conflict" question.... [T]hose questions are too bound up with each other for Kroger's theory to be correct. Subjecting the "conflict" question to an objective-reasonableness review would inevitably subject some aspect of the employee's religious beliefs, practices, or observances to the same standard. And we know that isn't allowed....

In any event, even if Kroger was right ..., there's evidence in the record that would allow (but not require) a rational juror to conclude... that Lawson and Rickerd reasonably believed that wearing the multi-colored heart would communicate support for and promotion of the LGBTQ community....

Regardless of what Kroger intended for its Our Promise symbol to mean, Lawson and Rickerd object to being seen as supporting or promoting homosexuality. So, the real question would be whether it was objectively reasonable for Lawson and Rickerd to believe that other people (i.e., customers) would think that the multi-colored heart was a pro-LGBTQ symbol. And a rational juror could go either way on that question.

7th Circuit Denies Preliminary Injunction To Doctor Fired For Refusing Vaccine

In Halczenko v. Ascension Health, Inc., (7th Cir., June 23, 2022), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a pediatric critical care specialist who was fired from his hospital position after he refused, on religious grounds, to comply with the hospital's COVID vaccine mandate. The court concluded that plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. Among other things, the court rejected the argument that the doctor will suffer a deterioration in skills that amounts to irreparable injury.

EEOC Sues Restaurant For Failing To Accommodate Employee's Church Attendance

The EEOC announced this week that it has filed suit against Del Frisco’s of Georgia, an Atlanta restaurant, for refusing to accommodate an employee's religious beliefs. The EEOC alleges:

[T]he employee requested and was granted an accommodation of not working on Tuesday evenings and Sunday mornings so she could attend prayer and church services. Del Frisco’s scheduled the employee to work on Tuesday, Dec. 31, 2019, in conflict with her existing religious accommodation and her need to attend prayer services that evening. The employee reminded her supervisors of her religious conflict, but she was not taken off the schedule. When the employee did not appear for work on that day, Del Frisco’s fired her.

Adventist School Sues Over Refusal Of Tournament To Accommodate Its Sabbath Observance

Suit was filed this week in an Alabama federal district court against the Alabama High School Athletic Association (AHSAA) by the Seventh Day Adventist Oakwood Academy that was forced to forfeit its further participation in this year's high school basketball championship tournament because the AHSAA refused to move the time of its game three hours later to permit the school to play without violating its Sabbath. The complaint (full text) in South Central Conference of Seventh Day Adventists v. Alabama High School Athletic Association, (MD AL, filed 5/3/2022), contends that the refusal to accommodate its religious exercise violated the Free Exercise and Establishment Clauses of the 1st Amendment. Al.com reports on the lawsuit.

Sikhs Sue Marine Corps For Religious Accommodation

On Monday, suit was filed against the Marine Corps and the Defense Department by four Sikh recruits who are seeking an accommodation that would allow them to wear religious beards and turbans while serving in the Marines. The complaint (full text) in Toor v. Berger, (D DC, filed 4/11/2022), claims that the Marine Corps treatment of plaintiffs violates their rights under RFRA as well as the 1st and 5th Amendments. The Sikh Coalition issued a press release announcing the filing of the lawsuit.

No Title VII Violation In Denying Hospital Employee 7 Days Off For Jewish Holiday Observance

In Wagner v. Saint Joseph's/ Candler Health Systems, Inc., (SD GA, March 28, 2022), a Georgia federal district court held that a hospital did not violate Title VII when it fired an Orthodox Jewish admissions notification specialist for taking off four days, in addition to the three days that were approved, to observe the Fall Jewish holidays. The court said in part:

The evidence shows that, due to the unique nature of Wagner’s job, accommodating her request would have required her supervisors and fellow employees ... to perform Wagner’s job for seven days over a seventeen-workday period. The parties agree that Wagner’s job was “time-sensitive” and that there were financial ramifications for the Hospital if Wagner (or whoever was performing her job) failed to notify insurance companies of inpatient stays involving one of their insureds within twenty-four hours.... Wagner also concedes that if the Hospital were to have granted her seven days off to observe the October High Holidays, [fellow employees] ... would have had to bear an additional workload, which would have taken them away from their own jobs....

This evidence suggests that the Hospital would have—and ultimately did— endure more than a de minimis cost in order to accommodate Wagner’s request to miss seven days of work to observe the October High Holidays.

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.

Health Care Company Will Pay $75,000 To Settle Christian Nurse's Religious Accommodation Claim

The EEOC announced yesterday that Wellpath, a provider of health services in correctional institutions, has agreed to settle a religious discrimination claim brought by the EEOC on behalf an Apostolic Pentecostal Christian nurse who was hired for a Texas jail.  According to the EEOC:

Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Under the settlement agreement, Wellpath will pay the nurse $75,000 in back pay and damages, and will provide anti-discrimination training and notice of rights to employees.

Delivery Service Settles EEOC Suit Charging Failure To Accommodate Church Attendance

The EEOC announced yesterday that Tampa Bay Delivery Service, an Amazon delivery provider, has settled a religious discrimination suit brought by the EEOC on behalf of a driver who was fired for refusing Sunday shifts in order to attend church services. The company will pay $50,000 in damages, will provide training on religious discrimination to managers and dispatchers, and will designate a religious accommodation coordinator.

3rd Circuit Hears Oral Arguments In Title VII Reasonable Accommodation Case

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Groff v. DeJoy.  In the case, a Pennsylvania federal district court (full text of district court opinion) dismissed Title VII claims brought by an Evangelical Christian postal worker who resigned after receiving warning letters and suspensions for refusing to work on Sundays. The district court rejected claims of religious discrimination and held that plaintiff had been offered shift swapping that met the "reasonable accommodation" requirement of Title VII.  The Third Circuit has not previously decided an issue on which the Circuits are split-- whether an employer must wholly eliminate a conflict between work and religion in order for an accommodation to be reasonable under Title VII. The district court concluded that complete elimination is not required.

Florida Hotel Settles EEOC Suit On Behalf Of 7th Day Adventist For $99,000

EEOC announced this week that a Sunny Isles Beach, Florida resort hotel, Noble House Solé, has agreed to settle a religious discrimination claim by paying $99,000 to a terminated employee, and also to create an anti-discrimination policy and to train employees regarding religious accommodation.  The complaint was brought by a Seventh Day Adventist employee who worked a room attendant. She needed Saturdays off. According to the EEOC:

Solé Miami accommodated the employee’s Sabbath observance for over ten months after she began her employment without incident.  Unfortunately, when a new supervisor came onboard, Solé Miami scheduled the employee to work on a Saturday.  When the employee missed work, Solé Miami immediately terminated her, even though employees that missed work for non-religious reasons were given multiple warnings prior to termination.

Greyhound Settles EEOC Religious Accommodation Lawsuit

The EEOC announced this week that Greyhound Lines has agreed to settle a religious discrimination lawsuit brought against it on behalf of a Muslim woman who, after being accepted into the bus line's driver training program, was told she could not wear an abaya. The abaya is a loose fitting outer garment worn because of religious beliefs regarding modesty. Greyhound will pay $45,000 in damages, and will train its human resource and hiring personnel on handling of religious accommodations.

United Airlines Can Place Employees With Religious Objections To Vaccine On Unpaid Leave

In Sambrano v. United Airlines, Inc., (ND TX, Nov. 8, 2021), a Texas federal district court refused to issue a preliminary injunction to prevent United Airlines from placing on unpaid leave employees who received religious or medical exemptions from United's COVID vaccine mandate. The court said in part:

This Order does not rule on the ultimate merits of this case. Instead, this Order merely rules on Plaintiffs’ request for the extraordinary remedy of a preliminary injunction....

The Court is not insensitive to Plaintiffs’ plight. A loss of income, even temporary, can quickly ripple out to touch nearly every aspect of peoples’ lives, and the lives of their families and dependents. But the Court’s analysis must be guided by the law, not by its sympathy.

Despite the novel facts presented here, the case law is clear that hardships stemming from loss of income are remediable; axiomatically such hardships cannot be called irreparable.

The Hill reports on the decision.

School Must Offer Alternatives To Nursing Students Who Assert Religious Objection To COVID Vaccination Requirement

In Thoms v. Maricopa County Community College District,(D AZ, Nov. 5, 2021), an Arizona federal district court granted a preliminary injunction to two nursing students who sought religious exemptions from the COVID vaccination requirement they faced in order to complete their 3-day clinical rotation. Originally the school required all students to comply with the placement requirements of its most stringent clinical partner, but later modified this for students doing their rotation at a clinic that had less stringent standards. However this did not help plaintiffs since their clinic required universal vaccination with no religious exemptions. The court held that under Arizona's Free Exercise of Religion Act, the school had not shown that it met the compelling interest/ least restrictive means test.  It undermined its interest in preventing the spread of COVID by allowing religious exemptions when students were assigned to rotations at clinics which did not mandate vaccination. It also had options such as simulated clinical experiences that could be offered as accommodations. The court applied a similar strict scrutiny analysis to plaintiffs' 1st Amendment free exercise claim, finding that the school's policy is not a generally applicable one since in at least one case the school provided an alternative to in-person clinicals.