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.

Dismissal Recommended in Healthcare Worker's Claim for Religious Exemption from Vaccine Mandate

In Bolonchuk v. Cherry Creek Nursing Center/ Nexion Health, (D CO, April 12, 2023), a Colorado federal magistrate judge recommended dismissing a suit by a former nursing home healthcare employee whose 18-year long employment was terminated after she refused on religious grounds to comply with her employer's Covid vaccine mandate for healthcare workers. A state regulation required the vaccine mandate. The court rejected plaintiff's 1st Amendment claim because defendant was not alleged to be a state actor.  It also rejected her claim that Title VII required a religious accommodation, saying in part:

Defendant would have had to violate a state law (i.e., the regulation mandate) in order to accommodate Plaintiff, clearly establishing an undue hardship.

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....

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

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.

Federal Reserve Bank Can Be Sued Under Both Title VII and RFRA

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Jan. 18, 2023), a New York federal district court held that two former employees of the Federal Reserve Bank of New York may bring Title VII as well as RFRA and Free Exercise claims against FRBNY for denying them a religious exemption from the Bank's COVID vaccine mandate. It distinguished cases holding that other governmental entities can be sued only under Title VII. It held however that New York City and New York state anti-discrimination laws are pre-empted by federal law giving NYFRB the power to dismiss employees.

Dismissal of Title VII Suit By Teacher Fired By Catholic School Is Denied

In Ference v. Roman Catholic Diocese of Greensburg, (WD PA, Jan. 18, 2022), a Pennsylvania federal magistrate judge recommended denying a motion to dismiss filed by the Catholic Diocese in a Title VII sex-discrimination lawsuit by a Lutheran 6th-grade teacher in a Catholic school who was fired shortly after being hired when the school discovered that he was in a same-sex marriage. The Diocese had raised defenses based on Title VII's exemption for religious discrimination, the church autonomy doctrine, the ministerial exception and RFRA.

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.

Christian School Teacher Fired for Acceptance of LGBT Students Files Suit

Suit was filed this week in an Arizona federal district court by Adam McDorman, an English teacher who was fired by Valley Christian School for urging the school's principal, Josh LeSage, to show acceptance and understanding of a student who identifies as pansexual.  The complaint (full text) in McDorman v. Valley Christian Schools, (D AZ, filed 12/27/2022), alleges in part:

15. McDorman’s Christian faith and beliefs include acceptance and equality for all LGBT persons and do not tolerate discrimination or hostility against them....

19.  On November 1, 2021, during a staff meeting at which McDorman was present, LeSage said that all of VCS staff should have the same religious belief in the sinfulness of LGBT sexual orientation, and that anyone who did not agree was like a cancer that needed to be removed from the (VCS) organization....

The complaint alleges that McDorman's firing amounted to religious discrimination and retaliation for opposing discriminatory practices in violation of provisions of Title VII and Title IX. AZFamily News reports on the lawsuit.

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.

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 Exclusion of Gender Transition Care From Health Insurance Policies

Suit was filed this week in a Georgia federal district court challenging under Title VII and Title IX the exclusion from certain state of Georgia's employee health care plans coverage for gender transition procedures.  The complaint (full text) in Rich v. Georgia, (ND GA, filed 12/14/2022) alleges in part:

United withdraws coverage for care that would otherwise be covered as medically necessary when it is needed for the purpose of “sex transformation operations and related services.” It lists this exclusion under the heading “Personal Care, Comfort or Convenience,” along with televisions, air conditioners, and barber service.

The complaint alleges that this exclusion, and a similar one by another company, amount to illegal sex discrimination. TLDEF issued a press release announcing the filing of the lawsuit.

8th Circuit Affirms RFRA Rights of Catholic Health Care Organizations to Refuse Gender Transition Services

In Religious Sisters of Mercy v. Becerra, (8th Cir., Dec. 9, 2022), the U.S. 8th Circuit Court of Appeals affirmed a district court decision that enjoined the federal government from requiring various Catholic health care organizations to perform or provide insurance coverage for gender transition procedures. The district court concluded that plaintiffs' rights under the Religious Freedom Restoration Act were violated by the requirements imposed by the government's interpretation of the Affordable Care Act and Title VII.  On appeal, the government raised only jurisdictional challenges-- standing, ripeness and lack of irreparable harm.  The 8th Circuit rejected the government's challenges, except as to standing of one organizational plaintiff.

Airline Settles EEOC Suit on Behalf of Buddhist Pilot

The EEOC announced this week that United Airlines has settled a religious discrimination lawsuit filed by the agency on behalf of a Buddhist airline pilot.  According to the EEOC:

[T]he pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). One of the requirements of United’s HIMS program ... to obtain new medical certificates from the FAA is that pilots regularly attend Alcoholics Anonymous (AA). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

Under the consent decree that resolves the lawsuit, United will pay the pilot $305,000 in back pay and damages and will reinstate him into its HIMS Program while allowing him to attend a non-12-step peer recovery program. The company will also accept religious accommo­dation requests in its HIMS Program going forward, institute a new policy on religious accom­modations, and train its employees.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.