SCOTUS clarifies "undue hardship" standard for religious accommodation under Title VII

Awe man, how embarrassing. It turns out that some of us (by which I mean basically all of us) have been getting it wrong for 46 years! You see, Title VII requires employers to reasonably accommodate an employee's sincerely held religious beliefs unless doing so would impose an "undue hardship."

Well, apparently we've been misinterpreting a 1977 Supreme Court decision (Trans World Airlines, Inc. v. Hardison) to interpret "undue hardship" as meaning "more than a de minimis cost." In fairness to us, the Supreme Court decision in question literally says, “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Or, if you like ellipses to really drive it home, "more than a de minimis cost . . . . is an undue hardship."

Justice Alito

No, no, no, says SCOTUS. Yesterday, the Supreme Court issued its opinion in Groff v. DeJoy. Now, despite my sarcasm, it has always been odd that "undue hardship," meant "more than de minimis" for religious accommodations, but something far more substantial under the ADA's disability  accommodation provisions. And, as the Court noted yesterday, "de minimis" means something far less than the plain language understanding of the phrase "undue hardship."

But, hey, the past is the past. Let's cut to the chase, what does "undue hardship" really mean in the context of a religious accommodation defense? 

• "We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business."
• "[C]ourts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

The fundamentals remain unchanged: An employer must reasonably accommodate an employee's sincerely held religious beliefs unless it imposes an undue hardship. Now, however, the bar has been raised for what counts as an "undue hardship."

Third Circuit on religious accommodations and undue hardship analysis

A fascinating precedential split opinion from the Third Circuit in Groff v. DeJoy.  

Background

A mail carrier for the U.S. Postal Service ("USPS") was also a Sunday Sabbath observer who believed that Sunday was a day for worship and rest. The USPS, however, believes that Sunday is a day for delivering packages under a contract with Amazon. So, we have a conflict between the employee's religious beliefs and the employer's work requirements. It's time to bring in the Title VII reasonable accommodations analysis! 

The USPS allowed the employee to swap shifts with his coworkers. There was just one problem: the coworkers wouldn't swap. The employee was unable to find someone to swap on 24 Sundays over a 60-week period. The employee faced discipline for missing shifts, and ultimately resigned citing the lack of "accommodating employment atmosphere" that would "honor [his] personal religious beliefs."

Two fascinating questions with close calls:

1. Did the employer offer a reasonable accommodation? 

Here, the majority concluded that the employer did not provide a reasonable accommodation. In line with prior Third Circuit precedent, the Court held that the accommodation must eliminate the conflict between the employee's religious beliefs and the job requirement. Here, the swapping simply did not resolve the conflict because the employee could not find anyone to swap. Other circuits, however, have concluded that the word "reasonable" means that the accommodation need not totally eliminate the conflict. 

2. Did the employer establish an undue hardship defense?

Okay, the swapping option was not a reasonable accommodation, but that does not mean the employer violated Title VII. The employer can still prevail by showing that it would incur an "undue hardship," which in the context of religious accommodation merely means more than a "de minimis" cost. The Court held:

Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his cowork

Not official use.

ers, disrupted the workplace and workflow, and diminished employee morale at both [locations where he worked].

In dissent, Judge Hardiman disagreed noting that:

[N]either our Court nor the Supreme Court has held that impact on coworkers alone—without showing business harm—establishes undue hardship.

Judge Hardiman essentially tees this up as a novel issue of whether damage to employee morale is sufficient to establish undue hardship.  

SCOTUS Review?

Just me speculating here - but we have a precedential circuit court decision that addresses two issues. The first issue - whether a reasonable accommodation must totally eliminate the conflict between the religious belief and the job requirement - is a circuit split. The second issue - whether damage to employee morale for coworkers having to pick up shifts on Sundays is an undue hardship - is (at least as portrayed by Judge Hardiman) a novel issue, which I suspect the current SCOTUS would like to take a look at. This could be an interesting case for SCOTUS review...

EEOC publishes technical assistance document on artificial intelligence and the ADA

Not official use.

What if an employer uses a "chatbot" to screen applicants? And, let's say the chatbot is programmed to screen out applicants who have a gap in their resumes. But, wait! What if the gap was caused by the applicant having a disability and needing time off for treatment? That could raise some ADA issues!

That's just one of the examples provided by the EEOC in its latest technical assistance document: The ADA and AI: Applicants and Employees. Employers who use software, algorithms, and AI to assess job applicants and employees should check out this document. It's mostly a high-level overview, but some good food for thought. 

Updated EEOC guidance on religious accommodations and COVID-19 vaccine mandates

As employer COVID-19 vaccine mandates ramp up - voluntarily, in response to federal contractor mandates, and in anticipation of the OSHA emergency standard - the EEOC continues to update its Q&A on COVID-19 and EEO laws. Yesterday, it added a new section: L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates.

The whole thing is worth a read (especially if you have employees requesting religious accommodations to vaccine mandates), but a few highlights:

•  "Title VII does not protect social, political, or economic views, or personal preferences."
• Employers should generally assume an employee's religious belief is sincerely held unless there is a basis to question it, in which case the employer may make limited inquiries and seek "additional supporting information."

• 

  Not official use.

  "Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held."
• The employer does not need to provide a reasonable accommodation if it would impose an "undue hardship" (for religion, merely more than a "de minimis" cost). Some "common and relevant" considerations: "whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer)."

Applying an employment law perspective to Naomi Osaka

Tennis star Naomi Osaka recently withdrew from the French Open, citing mental health issues that specifically precluded her from participating in press events. I thought it would be a helpful lesson for employers to view this situation through an employment law lens, and specifically the Americans with Disabilities Act (ADA). 

Caveat: I doubt that a French tennis tournament is a covered employer under the U.S. ADA, I have no idea whether the players are even employees (as opposed to contractors), and presumably there are contract provisions at play here too - think of this as an educational exercise, not actual analysis of her situation. 

Can "invisible" illnesses be disabilities?

Absolutely! The ADA defines a disability to include mental impairments that substantially limit a major life activity. And, major life activities include things like sleeping, eating, concentrating, thinking, communicating, and working... things that can be substantially limited due to severe mental illness. Here, we really don't know the extent of her mental health issues - but they could very well rise to the level of a disability under the ADA.

Would her employer have a duty to accommodate her? 

Attribution

This question highlights one of the employee's obligations - an employee generally has an obligation to provide the employer with notice that they have limitations that prevent them from fully performing their job, and then participating in the interactive process (i.e. talking to the employer to help identify reasonable accommodations). This may be a problem in Osaka's situation, because it appears she just announced on social media that she was not participating in press conferences (recognizing that talks may well have taken place behind the scenes). After notice, the employer also picks up an obligation to participate in the interactive process. 

Would missing the press conferences be a reasonable accommodation?

Assuming Osaka's mental health issues rise to the level of a disability, and that she notified the tournament of her need for an accommodation, would they have a duty to accommodate her? Under the ADA an employer would be required to provide her with a reasonable accommodation that enables her to perform the essential functions of her job. 

Here's where I think a lot of the commentary on this issue is missing the mark. Professional athletes are not just playing sports - they are professional entertainers. Yes, playing the tennis matches is obviously an essential function. But, many commentators have been far too dismissive of the argument that the press conferences are also an essential function of the job. Without more information, I cannot conclude that the press conferences are definitely an essential function - but I find it plausible that press conferences are an essential part of what is ultimately an entertainment endeavor. 

Bottom line

Subject to a lot of "ifs":

• IF her mental health issues rise to the level of a disability;
• IF the employer had notice of the need for an accommodation and she engaged in the interactive process; and
• IF she could miss the press conferences and still perform the essential functions of her job (i.e. the press conferences are not an essential function of the job); 
• THEN she may be entitled to an accommodation under the ADA - like playing in the tournament but without participating in the press conferences. 

New EEOC guidance on COVID vaccines: employer mandates and incentives

At long last, we have the updated EEOC guidance on COVID-19 vaccinations. The two big questions I keep getting are:

• Can employers require employees to get the vaccine? 
• Can employers incentivize employees to get the vaccine. 

The answers are generally yes and yes - but, as always, with a few caveats. 

Mandates (where the employer is *not* administering or contracting with someone else to administer the vaccine to the employee)

Not official use.

• Employees who cannot get the vaccine due to a disability or religious belief may be entitled to an accommodation;
• Some possible accommodations: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment;"
• Generally, employers have a defense to an accommodation claim where the employee poses a "direct threat" to health and safety - in this situation, the EEOC noted some factors: up-to-date CDC guidance, and "whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing;"
• Note that it gets more complicated where the employer is administering the vaccine, or contracting with someone else to administer the vaccine, to the employees. 

Incentives

• Full-throated "yes" from the EEOC on whether employers can offer incentives to employees and their family members to get vaccinated by their own doctor or pharmacy;
• But, if the vaccination is administered by the employer or its agent, then the incentive must not be "so substantial as to be coercive" (and good luck finding a good definition of what that means); and 
• GINA prohibits offering an incentive to the employee for the employee's family member to get vaccinated because it may require disclosure of the employee's family medical history.

Odd and Ends

• "[T]he employer is required to keep vaccination information confidential pursuant to the ADA;" and
• As you can probably tell from above, it is much more convoluted and difficult if the employer (or its agent) administers the vaccine.

As always, read the full guidance for additional information. 

Justices Gorsuch and Alito on inconsistent application of "undue hardship" under ADA and Title VII

I was juuuust talking about this in my employment law course. As luck would have it, we discussed both disability accommodation (under the ADA) and religious accommodation (under Title VII). I, of course, explained that an employer is not required to accommodate an employee (under either statute) if the accommodation would impose an "undue hardship" on the employer.  

Now, here's the weird part . . . under the ADA, "undue hardship" means "significant difficulty or expense in light of the employer's financial resources, the number of individuals it employs, and the nature of its operations and facilities." Under Title VII, it means "more than a de minimis cost." Same phrase. Different meanings. (quotes from Small, link below).

The miniscule bar for religious accommodations under Title VII was placed by the Supreme Court in Trans World Airlines, Inc. v. Hardison. The end result is that employers face a far more demanding obligation to accommodate disability compared to religion. Notably, both USERRA (in addressing an employer's obligation to restore a returning servicemember to their prior position) and the ACA (providing breaks for nursing mothers) utilize the ADA standard.  

Yesterday, the Supreme Court denied certiorari in (decided not to hear) Small v. Memphis Light, Gas & Water. Justices Gorsuch and Alito penned a dissent from denial of cert. They wanted SCOTUS to take this religious accommodation case and "correct" the "mistake" of Hardison. The de minimis standard remains the definition of "undue hardship" for religious accommodations... for now. The current SCOTUS lineup seems pretty favorable to religious accommodations though, so the de minimis standard's days may be numbered. 

Everybody panic! The EEOC just released its entirely unremarkable COVID vaccine guidance.

The long-awaited EEOC guidance on COVID-19 vaccines is here. Can employers require employees to get the brand new COVID-19 vaccine? Yes, but.... (you knew there was going to be a "but" right?).

Disability-Related Inquiries

If an employer administers the vaccine to its employees (or contracts with a third party to do it), then there's a small problem. The screening questions include disability-related inquiries. Employers (or their contractors) can only request such information if the questions are "job-related and consistent with business necessity." "To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others." We'll address that "direct threat" analysis below.

Two ways to avoid this issue altogether:

1. Make the screening questions (and therefore the vaccine) voluntary; or

2. Require the employee to show proof of vaccination from a third party that does not have a contract with the employer to administer the vaccine (like a pharmacy or health care provider).

Reasonable Accommodations and Direct Threat Analysis

Surely you saw this issue coming? Individuals with a disability or sincerely held religious belief that precludes them from getting vaccinated may be entitled to an accommodation. The ADA provides an exception if the employee with a disability (and therefore without a vaccine) would pose a direct threat to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation. 

What's a "direct threat?" The EEOC identifies four factors:

1. the duration of the risk; 

2. the nature and severity of the potential harm; 

3. the likelihood that the potential harm will occur; and 

4. the imminence of the potential harm.

"A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite." By contrast, Title VII provides an exception for an employee with a religious objection if the accommodation imposes more than a "de minimis" cost or burden. 

If no accommodation is possible without posing a direct threat (disability) or more than de minimis cost (religion), then the employer may exclude the employee from the workplace. But, the EEOC notes, "This does not mean the employer may automatically terminate the worker." The guidance points to other EEO laws and rights - perhaps a hint at telework as an accommodation? Or, perhaps just a reminder that employers have obligations outside of the ADA and Title VII. 

Genetic Information Nondiscrimination Act (GINA)

Finally, it is not clear if the screening questions will include requests for genetic information covered by GINA. Juts one more thing to worry about for employers who administer the vaccines themselves (or through a contractor). 

Grocery store's mask requirements survive ADA legal challenge

An interesting decision from the Western District of Pennsylvania, in Pletcher v. Giant Eagle. One of the plaintiff's, Josiah Kostek, sought a preliminary injunction against Giant Eagle grocery store claiming that its mask requirements violated the ADA. 

The plaintiff has been diagnosed with numerous mental impairments: "anxiety disorder; panic disorder; post-traumatic stress disorder; and, an adjustment disorder with mixed anxiety and a depressed mood." But, he failed to provide any medical records establishing that he could not wear a mask in the grocery store. Further, Giant Eagle allows shoppers to wear face shields instead of masks, and Kostek had no evidence that he was unable to wear a shield. 

The plaintiff managed to trip over the low bar of establishing a prima facie case. Of course, even if he had cleared that initial hurdle, Giant Eagle would still have an opportunity to present a defense - like, ya know, they're trying to avoid the further spread of a global pandemic that's already killed a few hundred thousand Americans. The Court did not directly rule on that issue, but sent a crystal clear message:

[T]he Court need not evaluate Giant Eagle's well-taken defenses that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic and that Kostek presented a direct threat to the health and safety of others, including customers and employees.

I understand people's frustration with mask requirements, but it appears to be an uphill legal battle to challenge store policies requiring them.  

Judge Barrett and the case of the Zamboni driver with a disability

 Back with another employment law opinion from Judge Barrett, this time in Graham v. Arctic Zone Iceplex, LLC. 

Graham was a Zamboni driver at Arctic Zone who got injured on the job. He did not work for a few months, and when he returned, he had certain medical restrictions. Specifically, he could only work sitting down. So, the employer tried to accommodate him by assigning him to sharpen skates. The employee disagreed - and claimed that he could not do the job sitting down. Here's the kicker though - "he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions." 

Ask anyone who has attended one of my classes or presentations on the ADA - do I hammer on the importance of the "interactive process?" I hammer on the importance of the interactive process. And, the interactive process (as the name would suggest) is a two way street requiring interaction from both sides:

This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Id. (citations omitted). Because he failed to uphold his end of the interactive process, we affirm the district court’s grant of summary judgment on the accommodation issue.

The employee also eventually got fired. So, Judge Barrett next turned to the employer's proffered legitimate non-discriminatory reasons for the termination. A few notes from that portion of the analysis:

• The employer was not required to provide prior written notice or discipline of the employee's "apparent bad attitude, inability to complete work on time, and insubordination."

• Judge Barrett derided the employee's "gotcha" argument - The employer argued that the employee did not handle his "change of position" well but also argued that the employee's "position" never changed. The reality was that the employee's schedule changed, so the semantics of calling it a "change of position" in one context and maintaining that it was the same position but just at a different time later was not viewed as contradictory. 

• Oh, the employee also caused a Zamboni accident that created a dangerous condition for customers at the ice rink. 

So, Judge Barrett affirmed summary judgment for the employer. 

Sidenote: I've read a few of Judge Barrett's opinions now, and she is an excellent writer. She clearly explains the relevant facts and analysis, and she presents them in an easily readable "plain English" style. She is not, however, "folksy" (contra Justice Gorsuch). 

HT: Eric Meyer, Supreme Court nominee Amy Coney Barrett on the ADA. Plus, Bill Murray’s attorney responds to that cease and desist 👀.

Update and reminder: EEOC guidance on COVID-19 and the ADA

The EEOC updated its guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. See G.3 and G.4 for new guidance on handling employees who have medical conditions that the CDC says may put them at higher risk for severe illness. In particular, the ADA may require that employers reasonably accommodate such employees if they request an accommodation. On the flip side, some employers are concerned about allowing such people back to work (out of concern for the health or safety of the employee. Can the employer exclude them? Generally not - unless their condition poses a "direct threat" to their health that cannot be eliminated by a reasonable accommodation. 

As businesses begin to reopen their physical locations, employers may also be interested in the prior guidance regarding employees who cannot wear masks:

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.

Stay tuned. As we shift gears to the re-opening phase, no doubt more issues will pop up (and so will more guidance).  

Accommodation claim survives close shave at the Third Circuit

"Close shave" - It's a case about a guy with a skin condition, pseudofolliculitis barbae (PFB), who sought an accommodation to not have to shave his face or neck - get it? Full not precedential opinion here: Lewis v. Univ. of Penn.

The Plaintiff/Appellant succeeded in reversing summary judgment on three interesting issues (the Court hit even more issues, but these are just the highlights):

Constructive Discharge

Not official use. 

Constructive discharge is a resignation that is treated like an involuntary firing under the law. Courts look for an abusive and intolerable environment in which a reasonable person would feel compelled to resign. In Lewis, the Court held that evidence of the following was sufficient for a constructive discharge claim to survive summary judgment:

Lewis’s superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened Lewis with discharge.

Interactive Process

I try to emphasize this point with employers - yes, there are a bunch of technical requirements about what counts as a disability, what is a reasonable accommodation, when an accommodation constitutes an undue hardship . . . but the ADA requires that employers participate in an interactive process. So, make an effort to engage with the employee to see what you can do to help. As the Court described it, the employer must "engage in a good faith interactive process to identify accommodations."

The trial court dismissed the ADA claim because Lewis never expressly requested his desired accommodation (exemption from a medical certificate requirement). The Third Circuit reversed because Lewis had requested a related accommodation and the employer knew about his disability. This triggered their obligation to engage in the interactive process to identify a reasonable accommodation. Lewis claims he just got a flat denial with no effort to communicate about his needs.

Medical certificate counts as "disability-related inquiry"

Subject to some exceptions, the ADA generally prohibits disability-related medical examinations  and inquiries. Interestingly, the Court relied on EEOC Enforcement Guidance for the definition. "Disability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability." Here, the employer required some kind of medical certificate, so the trial court on remand will have to address whether it was for a legitimate purpose.

Does the cost of a sign language interpreter constitute an undue hardship under the ADA?

First, check out this great article: How Reasonable is That Accommodation? Case Studies Evaluating the Reasonableness of Workplace Accommodations Under the Americans With Disabilities Act. The article provides three "case studies" for reasonable accommodations under the ADA, including Searls v. Johns Hopkins Hosp.

In Searls, a deaf nurse sought a reasonable accommodation under the ADA - an American Sign Language (ASL) interpreter. The nurse's salary was about $60,000/year, and the ASL interpreter would have cost up to $120,000/year. The hospital argued that it would effectively have to layoff two other nurses to account for the ASL interpreter in the budget. That sounds like a pretty good setup for an undue hardship defense, huh?

Not so fast! The Court declined to enter summary judgment for the employer, mostly because the $120,000 cost was only 0.007% of the hospital's budget. And, that right there is one of the difficulties in analyzing an employer's duty to accommodate employees with disabilities under the ADA.

You really have to examine circumstances. Did Johns Hopkins fail to get summary judgment on a $120,000 cost that was twice the employee's salary? Yeah. Does that mean your business has to provide such an accommodation? Well . . . wait for it . . . classic attorney punchline coming . . . that depends.

[Loud groaning and booing from the audience]. "Can you at least tell us what it depends on?" Fine. Per the ADA, here is a nonexhaustive (I know, I know - yes, there might be even more factors that aren't even listed) list:

(i) the nature and cost of the accommodation needed under this chapter; 

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and 

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 

42 U.S.C. § 12111(10)(B).

What is "religion" anyway? Third Circuit weighs in.

Title VII prohibits workplace discrimination based on religion, and requires reasonable accommodation of sincerely held religious beliefs. So, what is "religion" in this context? The Third Circuit recently issued a precedential decision on this issue in Fallon v. Mercy Catholic Medical Center.

Fallon was an intake worker for the medical center, which required employees to be inoculated against the flu. Fallon refused because he believed the vaccine did more harm than good. Although the hospital exempted some employees based on disability or religion, it refused to excuse Fallon and terminated him.

Fallon filed a religious discrimination/accommodation complaint against the hospital. The District Court dismissed the case because Fallon's beliefs were not religious in nature. On appeal, the Third Circuit affirmed.

What is religion?

The Third Circuit did not break new ground here, relying on past precedent:

In United States v. Seeger . . . the Supreme Court put forward a standard for determining whether a belief is religious: “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” . . . . 

Judge Adams proposed a modern definition of religion [in the concurring opinion in Malnak v. Yogi]. We later adopted this definition in Africa v. Commonwealth of Pennsylvania, describing it as follows: 

"First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs." 

This definition has met with considerable agreement.

That all sounds good, but can sometimes be difficult to apply in practice.

Why were Fallon's belief's not a religion?

Fallon believed that "one should not harm [his] own body" and that the flu vaccine would do just that. To Fallon, getting the vaccine would "violate his conscience as to what is right and wrong." He even drew support from comparable Buddhist teachings. Yet, he lost. Why?

The Court sums up in two succinct paragraphs:

Not official use.

It does not appear that these beliefs address fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature. Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine. In particular, the basis of his refusal of the flu vaccine—his concern that the flu vaccine may do more harm than good—is a medical belief, not a religious one. He then applies one general moral commandment (which might be paraphrased as, “Do not harm your own body”) to come to the conclusion that the flu vaccine is morally wrong. This one moral commandment is an “isolated moral teaching”; by itself, it is not a comprehensive system of beliefs about fundamental or ultimate matters. Thus, we do not believe that either of the first two factors in Africa is met here.  

Fallon fares no better under the third factor. Fallon’s views are not manifested in formal and external signs, such as “formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.”

Takeaway

A single strongly held belief - even if it's about right/wrong and a matter of conscience (i.e. "one general moral commandment") - does not constitute a religion under Title VII.

MORE Miles on Service Animals and the ADA

Great news! Bloomberg BNA used some of my interview for a second piece on the ADA implications of service animals in the workplace: Helping Workers Who Rely on Animals Without Making a Mess. Enjoy!

Transgender ADA claim survives motion to dismiss

In Blatt v. Cabela's Retail, Inc., a Pennsylvania transgender employee filed an ADA discrimination and retaliation claim. She alleged that "she requested a female nametag and uniform and use of the female restroom as accommodations for her disability." Her alleged disability was "Gender Dysphoria, also known as Gender Identity Disorder."

Here's the problem . . . the ADA specifically excludes "gender identity disorders" from  the definition of "disability." 42 U.S. Code § 12211. The defendant contended that her case should be dismissed because her alleged disability is specifically excluded by the statute. The plaintiff claimed that this exclusion is unconstitutional because it violates her equal protection rights.

The Court applied the "constitutional-avoidance canon" - the idea being that courts should try to interpret statutes in a way that avoids resolving constitutional issues - to conclude:

In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.

In other words, the Court interpreted the statutory exclusion of "gender identity disorders" so narrowly as to not cover what the plaintiff herself pleaded was a "Gender Identity Disorder." The Court went on to deny the motion to dismiss. The decision is likely not immediately appealable, but it's an issue that may find its way to the Third Circuit eventually.

The pharmacist who was afraid of needles and the ADA

Well, here's an interesting ADA case. In Stevens v. Rite Aid, Corp., the Second Circuit analyzed an ADA claim from a pharmacist with tryanophobia - a fear of needles.

A note from his doctor explained that he was "needle phobic and cannot administer immunization by injection." The pharmacist himself explained that this causes "lightheadedness, paleness, and a feeling that I may faint" and therefore he "would never even consider trying to become an immunizing pharmacist."

Generally, the ADA requires employers to reasonably accommodate employees with a disability. However, the employee still must be able to perform the essential functions of his job. Rite Aid requires its pharmacists to perform immunizations, and therefore injections were an essential part of the pharmacist's job. He "failed to present evidence suggesting the existence of a reasonable accommodation" that would have enabled him to do his job - so, he lost.

HT: My co-worker Jon Stepanian emailed me this ABA article: Court Holds That Pharmacist With Fear of Needles Has No Claim Under the ADA.

SCOTUS nominee Gorsuch on extended leave as a reasonable accommodation

I don't usually cover two-year old decisions from outside of my jurisdiction, but this case has (1) a hot employment law topic; and (2) the opinion was written by Judge Gorsuch, President Trump's nominee to the Supreme Court. The decision is Hwang v. Kansas State University.

The first two sentences concisely state the issue and the holding - I therefore already like this guy's writing style:

Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.

I should note that Kansas State is covered by the Rehabilitation Act because it receives federal funding - however, the same analysis from this case would presumably be applicable to private employers covered by the Americans with Disabilities Act (ADA).

Judge Gorsuch's recitation of facts demonstrates empathy for the plaintiff, while setting up the restrictions of the law:

Judge Gorsuch - courtesy Boston Herald. 

By all accounts, Grace Hwang was a good teacher suffering a wretched year. An assistant professor at Kansas State University, she signed a written one-year contract to teach classes over three academic terms (fall, spring, and summer). But before the fall term began, Ms. Hwang received news that she had cancer and needed treatment. She sought and the University gave her a six-month (paid) leave of absence. As that period drew to a close and the spring term approached Ms. Hwang's doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer term. But according to Ms. Hwang's complaint, the University refused, explaining that it had an inflexible policy allowing no more than six months' sick leave.

The Rehabilitation Act requires covered employers to reasonably accommodate qualified (defined as being able to perform the essential functions of the job) employees with disabilities.

There's no question she's a capable teacher, no question she's disabled within the meaning of the Act. But there's also no question she wasn't able to perform the essential functions of her job even with a reasonable accommodation. By her own admission, she couldn't work at any point or in any manner for a period spanning more than six months. It perhaps goes without saying that an employee who isn't capable of working for so long isn't an employee capable of performing a job's essential functions—and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation.

 Judge Gorsuch did acknowledge that a shorter absence may justify leave as a reasonable accommodation: "Of course, an employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job." Distinguishing between the two situations can potentially be difficult. Judge Gorsuch notes some factors for consideration, including "the nature and length of the leave sought, and the impact 'on fellow employees.'"

Again, showing some sympathy for the plaintiff, while describing the confines of the law:

Still, it's difficult to conceive how an employee's absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang's is a terrible problem, one in no way of her own making, but it's a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.

All told, it's a fairly employer-friendly opinion. That said, it seems to be the right result, and strikes a balance between acknowledging the unfortunate circumstances of the employee while recognizing that the Rehabilitation Act does not provide for the remedy she sought.

I have read a few of Judge Gorsuch's opinions and have been impressed by his writing style. His opinions are readable, but he still provides technical legal analysis.

HT:

Terrific article from @JacksonLewisPC analyzing Supreme Court Nominee Neil Gorsuch's labor and employment law decisions. https://t.co/IlkLhMWZ87

— Taylor Crabill (@taylor_crabill) February 4, 2017

Hospital Coughs Up $300,000 in Vaccination Lawsuit

We've been here before. Employers (often hospitals) require employees to get vaccines. Some employees object on religious or disability grounds. They get fired. Litigation ensues.

You can read my prior analysis of such issues here, here, or here. To cut to the chase, the employer can prevail by showing that either:

• The employer cannot accommodate the vaccine-less employees without incurring an undue hardship; or 

• The lack of vaccine poses a direct threat to health or safety.

This should be relatively easy to establish in a hospital, right? Kids, the elderly, and people with compromised immune systems are all over the place. So, why did a Pennsylvania hospital cough up $300,000 to settle an EEOC lawsuit?

Well, per the Complaint, the hospital did accommodate some people by exempting them from the vaccine requirement so long as they wore a face mask. It becomes harder to argue that an exemption from the vaccine requirement imposes an undue hardship or direct threat when they're handing out accommodations like this. 

For reasons that are not clear, the hospital allegedly declined to grant the accommodation to other employees. Again, per the Complaint, the employees' religions included Russian Orthodox, Baptist, Methodist, Mysticism, and more. One employee allegedly submitted Bible passages and had her priest contact the hospital (this sounds like a sincerely held religious belief, am I right?).

Bottom line: If employers are going to make vaccines mandatory, they need to either hold a hard line (in cases where vaccine-less employees pose a threat to the health or safety or patients or otherwise impose an undue hardship, for example); or, consistently accommodate employees with sincerely held religious beliefs (or disabilities).  

Sikhs, Drug testing, and Religious Accommodation

Not official use.

Under Title VII, employers have an obligation to reasonably accommodate the sincerely held religious beliefs of employees and job applicants. The EEOC reports: J.B. Hunt Transport Settles EEOC Religious Discrimination Charge for $260,000.

The case involved Sikhs, who applied for jobs and were required to submit a hair sample for drug testing. Per the EEOC release, "One of the five articles of faith for Sikhs is maintaining uncut hair." Three applicants were denied employment based on their failure to submit to the tests.

J.B. Hunt did not admit liability but agreed to pay the $260,000, offered the Sikh applicants jobs, and revised its drug testing policy.
The article is not clear as to how the policy was revised. There are alternatives to hair testing (saliva, blood, urine, etc.) - but I do not know enough about Sikhs to know whether those actually accommodate all of their beliefs.