Teachers Sue Over School District's Policy on Transgender Students

Suit was filed last month in a California federal district court by two middle school teachers who claim that their school district's policy on dealing with transgender students violates their free speech and free exercise rights, as well as the rights of parents.  The complaint (full text) in Mirabelli v. Olson, (SD CA, filed 4/27/2023), alleges in part:

According to EUSD’s policies, all elementary and middle school teachers must unhesitatingly accept a child’s assertion of a transgender or gender diverse identity, and must “begin to treat the student immediately” according to their asserted gender identity. “There’s no requirement for parent or caretaker agreement or even for knowledge.”... There is absolutely no room for discussion, polite disagreement, or even questioning whether the child is sincere or acting on a whim. 

... Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent” is prohibited, and “parents or caretakers” are, according to EUSD, individuals who “do not have a legitimate need for the information,” irrespective of the age of the student or the specific facts of the situation....

Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions....

Mrs. Mirabelli’s and Mrs. West’s request was flatly denied.

The two plaintiffs devised a "joint statement of faith" for purposes of the lawsuit, even though they come from different religious traditions. One is Roman Catholic and the other a "devout Christian."  They alleged:

Plaintiffs’ faith teaches that God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person.

... Plaintiffs also believe that they cannot affirm as true those ideas and concepts that they believe are not true, nor can they aid and abet the deception of others. Doing so, they believe, would violate biblical commands against dishonesty and lying.

Fox News reports on the lawsuit.

EEOC Sues Hospital for Failing to Accommodate Religious Objection to Flu Shot

The EEOC announced yesterday that it has filed suit against Mercy Health St. Mary’s, a Grand Rapids, Michigan hospital for refusing to provide a religious accommodation to a job applicant and declining to hire him because of his religious beliefs. The release said in part:

... Mercy Health St. Mary’s violated Title VII of the Civil Rights Act of 1964 by rescinding a job offer to an applicant who, for religious reasons, refused to receive a flu vaccine. Under Mercy Health’s influenza policy, employees are required to get a flu shot on an annual basis unless granted an exemption. While the applicant’s conditional job offer was pending, he applied for an exemption to the flu shot requirement based on his religious beliefs. Mercy Health arbitrarily denied his request and rescinded the job offer, without specifying to the applicant why or how his request for an exemption was deficient, the EEOC said.

Supreme Court Hears Oral Arguments Today In Title VII Religious Accommodation Case

The U.S. Supreme Court will hear oral arguments today in Groff v. DeJoy, an important religious liberty case testing the extent to which Title VII requires accommodation of employees' religious practices. 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.) In the case, petitioners are asking the Supreme Court to revisit and reject the "more than de minimis" test for "undue hardship" announced in TWA v. Hardison. SCOTUSblog has a Case Preview with more details on the parties' arguments. The SCOTUSblog Case Page has links to the filings by the parties as well as to the more than 50 amicus briefs that have been filed. The arguments will be streamed live from the Supreme Court today at 10:00 AM here. The transcript and audio of the full oral arguments will be available later today here on the Supreme Court's website.

7th Circuit: Accommodating Teacher's Religious Beliefs as To Transgender Students Imposed Undue Hardship

 In Kluge v. Brownsburg Community School Corp., (7th Cir., April 7, 2023), the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. In a 79-page majority opinion rejecting the teacher's Title VII claims, the court said in part:

After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent that the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes and in the school generally, as well as the faculty. The district court granted summary judgment in favor of the school after concluding that the undisputed evidence showed that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students that entered its doors. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim. We agree that the undisputed evidence demonstrates that Kluge’s accommodation harmed students and disrupted the learning environment. Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.

Judge Brennan dissented as to the reasonable accommodation claim. In a 54-page dissent, he said in part:

Kluge’s religious accommodation claim comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all students by only their last names causes undue hardship—that is, more than a de minimis cost? The majority opinion says “yes,” but it sidesteps Kluge’s countervailing evidence, fails to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder. 

... [W]ithout supporting authority, my colleagues hold that the undue hardship inquiry looks only to evidence within the employer’s knowledge at the time of the adverse employment decision.... Considering the entire record, there is a genuine issue of material fact on undue hardship, which we should remand for trial.

Reuters reports on the decision.

9th Circuit: Jehovah's Witness' Suit Over State-Employee Loyalty Oath Is Remanded

In Bolden-Hardge v. Office of the California State Controller, (9th Cir., April 3, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a district court's dismissal of a suit by a Jehovah's Witness who challenged California's refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion which requires her primary loyalty be to God. Reversing dismissal of plaintiff's Title VII claims, the court said in part:

California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield....

[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation....

Bolden-Hardge alleges a disparate impact... She contends that her religious beliefs are “consistent with [those] of other Jehovah’s Witnesses,” who also believe that their faith forbids them from swearing primary allegiance to any human government.... [T]his belief is in tension with the loyalty oath requirement....

The loyalty oath is a business necessity, the Controller’s Office argues, because public employees must be “committed to working within and promoting the fundamental rule of law while on the job.”... It asserts that allowing addenda that indicate an oath-taker’s primary loyalty to God would render the oath meaningless and undermine critical state interests. This assertion may well prove true and, if so, the Controller’s Office may be able to defeat Bolden-Hardge’s disparate impact claim at a later stage of the litigation. But this is not apparent from the face of her Complaint,,,,

Muslim Corrections Officer Applicant Can Move Ahead With 1st Amendment and Title VII Claims

In Talukder v. State of New York, (SD NY, March 31, 2023), a New York federal district court allowed a Sunni Muslim applicant to the New York Department of Corrections Training Academy to move ahead with his 1st Amendment free exercise claim as well as his Title VII failure to accommodate and disparate treatment claims.  Plaintiff sought to wear a 3-inch beard for religious reasons, while the Academy was unwilling to permit any beard longer than one-eighth of an inch. Finding a free exercise violation was adequately alleged, the court said in part:

DOCCS allows numerous uniformed staff to grow beards for secular reasons, while simultaneously denying trainees the same accommodation on religious grounds....

The justification that Defendants proffer for the ban—that “all trainees must pass a respirator fit test and applicable respirator training to become certified correctional officers,” ...—raises a fact-intensive inquiry that fails to justify dismissal at this stage. The Complaint raises a plausible inference that a policy requiring all trainees to be clean-shaven or wear facial hair no longer than 1/8 of an inch in order to pass a respiratory fit-test is not narrowly tailored to advance the goal of preparing trainees to become corrections officers—particularly given that many of those officers will never have to wear a respirator at all....

DOJ Enters Consent Decree with Lansing, MI In Suit Over Firing of 7th Day Adventist Employee

The U.S. Department of Justice announced yesterday that it has entered into a consent decree with the city of Lansing, Michigan to settle a Title VII religious accommodation and retaliation lawsuit that alleged the city fired a Seventh Day Adventist police officer rather than accommodating her Sabbath observance. Under the terms of the consent decree, which must still be approved by the court, Lansing will develop religious accommodation and retaliation policies, and trainings on them. It will also pay the former employee $50,000 in back pay and compensatory damages. UPI reports on the settlement.

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

 In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

Cert. Granted To Review Title VII "Undue Hardship" Test For Religious Accommodation

The U.S. Supreme Court yesterday granted review in Groff v. DeJoy, (Docket No. 22-174, certiorari granted, 1/13/2023). (Order list). 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.)In the case, petitioners are asking the Supreme Court to revisit and reject the test for "undue hardship" announced in TWA v. Hardison. (cert. petition). Here is SCOTUSblog's case page for the case.

NY Governor Vetoes Bill on Notifying Defendants of Right to Secular 12-Step Programs

On Dec. 23, New York Governor Kathy Hochul vetoed New York Senate Bill 7313A which would have required courts, in imposing alcohol or substance abuse treatment on a defendant, to inquire if the defendant has religious objections to the program, and if the defendant does, to identify an alternative nonreligious treatment program for the defendant.  As reported by Only Sky, the veto was met with substantial criticism.  In her Veto Memo, Governor Hochul explained her veto in part as follows:

While I support the right to a substance use treatment program that will be most effective, codifying the right to object to mandated attendance at a religious substance use treatment program sets an uncomfortable precedent in that it may invite future selective legislative efforts to inject a similar burden upon judges to inform litigants of their rights to opt out of other court mandates. This process may raise questions whether litigants enjoy rights to opt out of other mandates on religious grounds where the underlying statutes have not been amended to codify those rights. Given that defendants already have the right to request nonreligious treatment, this bill is unnecessary and imposes an overly rigid burden on courts and judges.

EEOC Sues For Rastafarian Who Was Denied Grocery Manager Position

The EEOC has announced that yesterday it filed a Title VII religious discrimination suit against a Williamsburg, Kentucky IGA grocery store.  The suit, filed in a Kentucky federal district court, alleges that the grocery refused to hire Spiritualist Rastafarian Matthew Barnett as an assistant manager after he refused to cut his dreadlocks which he wears for religious reasons. The EEOC says that employers must consider reasonable accommodations for religious beliefs.

DC Circuit: Marines Must Accommodate Sikh Recruits in Boot Camp

In Singh v. Berger, (DC Cir., Dec. 23, 2022), the D.C. Circuit Court of Appeals granted a preliminary injunction to two Sikh Marine Corps recruits who seek an accommodation to wear unshorn hair, beards and certain articles of faith during boot camp training. The court, relying on RFRA, said in part:

So the Plaintiffs’ likelihood of success comes down to whether the Marine Corps has demonstrated a compelling interest accomplished by the least restrictive means in refusing to accommodate their faith for the thirteen weeks of boot camp. The Marine Corps has failed to meet its burden on both fronts....

[T]he Marine Corps argues that excepting the Plaintiffs from the repeated ritual of shaving their faces and heads alongside fellow recruits, and permitting them to wear a head covering, will impede its compelling interest in forging unit cohesion and a uniform mindset during boot camp....

... Colonel Jeppe’s claimed compelling need for inflexible grooming uniformity does not stand up against the “system of exceptions” to boot camp grooming rules that the Corps has already created and that seriously “undermine[]” the Corps’ contention that it “can brook no departures” for Plaintiffs....

To sum up, Plaintiffs have demonstrated not just a likely, but an overwhelming, prospect of success on the merits of their RFRA claim. At a general level, the Government has certainly articulated a compelling national security interest in training Marine Corps recruits to strip away their individuality and adopt a team-oriented mindset committed to the military mission and defense of the Nation. But RFRA requires more than pointing to interests at such a broad level.... The Marine Corps has to show that its substantial burdening of these Plaintiffs’ religion furthers that compelling interest by the least restrictive means. That is where the Marine Corps has come up very short.... 

Becket issued a press release announcing the decision.

Court Remands Question of Accommodating Religious Objection to COVID Testing

In In re Whitehead, (NJ App,, Dec. 22, 2022), a New Jersey state appellate court remanded to the state Civil Service Commission for further findings an appeal by a city zoning officer whose employment was terminated after she refused to be tested for COVID in order to return to work.  Plaintiff's refusal of testing was based on her religious beliefs which the court described:

She explained her refusal to undergo the test is founded on her belief the testing is required because of a fear she may be infected with COVID-19, and that fear is inconsistent with her religious belief that "God has not given us the spirit of fear." Thus, according to Whitehead, she could not, based on her religious beliefs, succumb to the fear she had COVID-19 upon which the City based its testing requirement.

The court explained its remand decision:

The ALJ determined the termination of Whitehead's employment did not violate the City's obligation under Title VII to reasonably accommodate Whitehead's religious belief because returning Whitehead to work without COVID-19 testing created an undue hardship — the risk of infecting the City's other on-site employees with COVID-19. That determination, which Whitehead does not challenge on appeal, applies solely to an accommodation — returning Whitehead to on-site work without testing — she no longer claims is reasonable, required, or appropriate...  

Whitehead, however, correctly argues the ALJ did not decide her claim the City should have allowed her to work from home as a reasonable accommodation based on her asserted religious belief.

EEOC Sues Over Refusal To Accommodate Religious Objections To Flu Vaccine

The EEOC announced on Friday that it has filed a Title VII religious discrimination lawsuit in a Georgia federal district court against Children’s Healthcare of Atlanta (CHOA), a pediatric healthcare system. According to the EEOC's press release:

... [A] maintenance employee, in accordance with CHOA’s procedures, requested a religious exemption to CHOA’s flu vaccination requirements based on sincerely held religious beliefs. CHOA had previously granted the employee a religious exemption in 2017 and 2018. In 2019, however, CHOA denied the employee’s request for a religious accommodation and fired him, despite the employee’s extremely limited interaction with the public or staff.

... Title VII ... prohibits firing an employee because of his religion and requires that sincerely held religious beliefs be accommodated by employers....

“It would not have been an undue burden for CHOA to continue accommodating its employee as it had in 2017 and 2018,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “Instead, CHOA inexplicably changed its stance on flu vaccination exemptions for this maintenance employee in 2019 and failed to consider any meaningful reasonable accommodations for his sincerely held religious beliefs.”

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

EEOC Sues Over Refusal to Accommodate First Responders' Need to Wear Beards

The EEOC announced yesterday that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc. which operate one of the largest medical transport companies in the country. The suit alleges that the companies have refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons or because of medical conditions. The companies contend that facial hair prevents respirators from fitting properly, but the EEOC says that the companies should have accommodated the religious and medical needs of employees by allowing them to wear the type of respirators that would have allowed them to maintain beards.

DC Circuit Hears Oral Arguments From Sikh Marine Enlistees

On Tuesday, the D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. (Audio of full oral arguments.) In the case, 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. (See prior posting.) PTI reports on the oral arguments.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

City Employees Did Not Show Sincere Religious Objection To COVID Vaccine

In Keene v. City and County of San Francisco, (ND CA, Sept. 23, 2022), a California federal district court dismissed a suit by two city employees who objected on religious grounds to the city's COVID vaccine mandate. The court said in part:

Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.... Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief....

The court denied a preliminary injunction under Title VII and California's Fair Employment and Housing Law, also concluding: 

It is well-settled law that loss of employment does not constitute irreparable harm for purposes of an injunction....