Sixth Circuit Rejects Two Religious Exemption Challenges to Employer COVID Vaccination Policies

In what seems never-ending COVID-19 litigation, the Sixth Circuit affirmed summary judgment for two employers who were sued for violating employees’ religious beliefs.  In the first, the employee was provided with a weekly testing accommodation to avoid vaccination, but she rejected it as coercive, manipulative and invasive even though the employer permitted saliva testing.  DeVore v. Univ. of Kentucky Bd of Trustees, No. 23-5890 (6^th Cir. 10/11/24).  The Court found that she failed to produce any evidence to show a conflict with her unspecified religion or beliefs and the employer’s test-or- vaccinate policy.   In the most recent case, the employee’s request to work remotely without a vaccination was denied because her essential job duties required her to work daily with healthcare providers who are tending extremely ill children.  Kaiser v. St. Jude’s Children’s Research Hosp., No. 24-5207 (11/18/24).   The Court found that it would constitute an undue hardship to transfer her to another job and determine whether a different job could be performed remotely even though it had permitted a dozen other employees to work remotely as an accommodation.  It also rejected her direct supervisor’s affidavit as conclusory about whether accommodations existed and the manner in which her job duties could be performed remotely.  Finally, the Court rejected her argument that the employer failed to engage in an interactive process or that an elaborate process was even required under Title VII (vs the ADA). 

According to the Court’s opinion in DeVore, the plaintiff had worked for the University since 1999.  Following the COVID pandemic, she requested to retain a hybrid work schedule, but was refused.   When the University instituted a vaccinate-or-test policy, she sought a religious exemption.  While never specifying the name or nature of her religion, she objected to the policy as coercive (i.e., could be fired for non-compliance), manipulative (i.e., trying to compel vaccination) and invasive (i.e., genetically reprogram her or risk contamination from nasal swabs, etc.).  The University then agreed to permit her to be tested with cheek swabs or saliva, but she maintained her “religious objections.”   She was subjected to progressive discipline and threatened with termination during an unpaid suspension.  However, the University encouraged and permitted her to retire instead.   In response to the University’s summary judgment motion, she submitted only her prior emails and no affidavits or deposition testimony. 

[She]  offers no other evidence to show a conflict between her religion and the Policy. She supplied no affidavit or declaration articulating how complying with the Policy conflicts with her religious beliefs or practices. She entered none of her own deposition testimony in the record to add color to the excerpts the University provides. She filed a six-page complaint, which in any event is unverified, that included only the conclusory statement that “due to her deeply held religious beliefs,” she “objected to mandatory Covid testing.” [She] has, in fact, throughout this litigation never identified in the record what her religion is.

In the end, [her] religious opposition to the Policy flows almost entirely from her objections to nasal PCR testing and vaccination, objections she raised before the University informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to account for these alternatives. Her invasiveness objection responds only to nasal swab testing, her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her coercion objection doubles down on her manipulation objection, supplementing it with only her “personal” characterization of mandatory testing as inequitable and unfair.  . . .  But they fail at summary judgment to establish a conflict between [her] religion and the Policy. [Her] Title VII claim fails with them.

According to the Court’s opinion in Kizer, the plaintiff “was employed by [the] Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.”’  The Hospital also implemented a mandatory vaccination policy (to protect its pediatric patients) with a religious exemption process. The plaintiff sought an exemption and sought to work remotely.  However, when examining her primary job duties, the Hospital denied the request because of “the upcoming launch (or “go live”) of the new Epic system and  . . . her job required her to work in person in clinical areas and in contact with clinical people.”  In particular, “in the run up to the system’s “go live” date, “it was anticipated that [she] would shadow clinicians, nurses, research coordinators, clinical laboratory personnel, pharmacists and others involved in clinical research, often in yellow-zoned clinical areas, to better understand decision-making and workflow for the build of the new system.”’ Apparently, after she was fired, she suggested other possible accommodations which were never considered.  She ultimately submitted an affidavit from her direct supervisor suggesting that some of her duties could have been transferred to vaccinated staff or she could be reassigned to a position which could accommodate remote work.

The Court rejected the plaintiff’s argument that the Hospital failed to reasonably accommodate her request because it never consulted with her or her direct supervisor or engaged in any interactive process (like would be required in evaluating reasonable accommodation requests under the ADA). 

Though [the plaintiff]  frames this assertion as a factual dispute, she has pointed to no legal authority that would require employers considering Title VII accommodations (rather than accommodations under the Americans with Disabilities Act (ADA)) to engage in such a process, much less any legal authority holding that Title VII required [the employer] to consult specifically with [her] or her direct supervisor,  . . .. , rather than [her] ultimate supervisor,  . . . . Neither the ADA nor Title VII contains a statutory reference to a required interactive process, but the regulations implementing the ADA state that “[t]o determine the appropriate reasonable [disability] accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” . . . Title VII’s regulations contain no similar reference to an interactive process. [The plaintiff] does not ask us to determine whether the ADA’s regulatory interactive-process requirement applies to religious accommodation claims under Title VII. But even if we assume that such a requirement applied, [the employer] would satisfy it, particularly as defined by regulatory guidance specific to Title VII.

The Equal Employment Opportunity Commission (EEOC) publishes a nonbinding compliance guide for employers covered by Title VII which provides that, “[a]lthough an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so.” . . . The manual continues, “[o]nce the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer’s business.” Id. Importantly, the EEOC concludes that “[f]ailure to confer with the employee is not an independent violation of Title VII. But as a practical matter, such failure can have adverse legal consequences.”

 . . ..

 . . . [The employer] submitted undisputed evidence that it developed and implemented a systematic process for considering requests for religious accommodation, including by “obtain[ing] promptly whatever additional information [was] needed to determine whether a reasonable accommodation [was] available.” . . . [The plaintiff’s] request provided ample information about her religious beliefs regarding the vaccine.  . . [The employer] presented evidence that it obtained and developed information about the risk of COVID exposure in the context of its mission of treating vulnerable juvenile patients,  . . . as well as evidence that [it] obtained information about [her] essential duties and whether her job could be performed remotely, . ..

Even under the ADA, an employer’s failure to engage in an interactive process “is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . . . “In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim.”  . . .  As we hold below, [she] has not “present[ed] evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”

[The plaintiff] argues that [the employer] should be required to present evidence that it considered various alternative accommodations proposed by [her] after the fact, and she asserts that [it] failed to engage in a good-faith interactive process because “[t]he only accommodation it ever considered . . . was that all the job duties of the [religious objector] had to be able to be performed off campus.”  . . .  But even under the ADA’s explicit interactive-process requirement, “. . . [an] employer has the burden of showing how [a proposed] accommodation would cause an undue hardship, but the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith.”  . . . . And we have held in other Title VII contexts that “[i]n deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”  . . .  

Ultimately, [the employer] presented evidence that, because unvaccinated people posed a safety risk to its vulnerable and unable-to-be-vaccinated juvenile patient population, the presence of any unvaccinated staff on campus would be an undue hardship in the context of St. Jude’s core business and mission.  . . .  [She] has submitted no contrary evidence showing that it would be safe for unvaccinated people to be on campus. In fact, she expressly disclaims any “challenge[] [to] the legitimacy of [the employer] to implement a mandatory COVID-19 vaccine policy.”

We thus cannot say that, as a matter of law, [it] violated an implicit interactive-process duty under Title VII (as yet unrecognized in this circuit). [It] has presented evidence of a thorough information-gathering process with input from [the plaintiff] herself. And the EEOC is clear that Title VII contains no such hard and fast requirement of an interactive process. As discussed below, [she] has not provided legal authority to support a contrary conclusion or sufficient factual evidence to allow a reasonable jury to find that [it] could have accommodated Kizer without undue hardship.

To show that it would be an undue hardship to accommodate her request,

The employer must thus show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” meaning that the statutory requirement of “‘undue hardship’ is [met] when a burden is substantial in the overall context of an employer’s business.”

 . . . .

[The employer’s] evidence indicates that, contrary to [the plaintiff’s] suggestion, it would be less than a full year before her in-person duties kicked in.  . .. It thus presented evidence that in-person, “at the elbow” shadowing was an essential function of [her] job not easily “swapped” with another employee.  . . .  And because [she] could not be safely on campus while unvaccinated, she could not be accommodated without undue hardship.

[The employer’s] evidence also revealed that [her] other proposed accommodations would create a substantial burden in the overall context of its business, and thus an undue hardship. [It] submitted evidence that it maintained no 100% remote positions; even [her] out-of-state colleagues were required to come to campus on a regular basis.  . . . Because transferring [her] to an alternate position that could be performed 100% remotely would require [it] first to identify a new position for which [she] was qualified and then to determine anew whether that position could be modified to accommodate her, such a transfer would not alleviate the undue hardship.   . . . And [it] submitted evidence that it developed a thorough and systematic process for considering requests for accommodations,  . . .  that several dozen employees had requested religious accommodations, and that, unlike [her], the small number who were ultimately accommodated already occupied positions that could be modified to be 100% remote,  . . . . The district court thus correctly found that [it] evidence demonstrated that it would be “a substantial burden in the overall context of [its] business,” to identify and modify new positions for religious objectors, “especially considering the number of people seeking accommodation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court Denies Unemployment Compensation to Employee Who Failed to Obtain New Certification Required by Employer

Yesterday, the Ohio Court of Appeals affirmed the denial of unemployment compensation to an employee who failed to obtain a new certification required by her job despite being given eleven months to do so before she was fired.   Farrar v. Univ. Hosp. Health Sys., Inc., 2024-Ohio-5374.   The court found that the employer had just cause to terminate her employment because she was not without some fault in her delay in obtaining the newly required certification, which she blamed on her ignorance that her employer would have reimbursed her expenses if she passed the test.  The court did not find that she was “unsuitable” because the employer failed to notify her of the new requirement when it purchased her former employer and this was not a promotion which was conditioned on the certification requirement.  Nonetheless, the Court found that she was not the victim of economic or business conditions, which was the underlying purpose of unemployment compensation.

According to the Court’s opinion, the claimant had been hired as a medical coding specialist in 2014.  Her employing hospital was acquired by her new employer in May 2021.  In December 2021, it imposed a new requirement on medical coders to obtain certification by June 30, 2022.  The claimant was unaware that the employer would provide study materials at cost or reimburse her for all of her expenses to take the test if she passed.  The employer indicated during the unemployment hearing that the test was offered every two weeks.  The claimant did not attempt to take it until June 2022 and she failed.  She was given an extension until December 1, but she did not try again to take it until November.  She again failed.  She indicated that she was planning to retake the test when she was fired on December 1, 2022.

Typically, an employee is not found to have been at fault if s/he is unable to meet a new condition of employment.   The Ohio Supreme Court’s test in Tzangas indicates that just cause requires proof that the employee’s job performance was unsatisfactory based on expectations that were established at the time of hire and the “requirements of the job did not change substantially since the date of the original hiring for that particular position.”  Later decisions have found that this same test applies to promotions – i.e., an employee is at fault if s/he fails to obtain a required certification required as a condition of a job promotion.  In this case, the employer implied that the claimant had been hired at the time the employer acquired her former employer.  However, the evidence indicated that the certification requirement was not communicated to the claimant until the following year and the job description had been revised accordingly.  Therefore, the employer could not rely on Tzangas to prove that she had been unsuitable for the medical coder position.

Nonetheless, the court found that the Tzangas test was not the only basis to find an employee to be at fault for their unemployment.

{¶14} “Just cause” within the meaning of R.C. 4141.29(D)(2)(a) “‘“is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.”’”  . . .  “The determination whether there is just cause for discharge depends upon the factual circumstances of each case.”  . . . “‘[W]hat constitutes just cause must be analyzed in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Essentially, the Act’s purpose is “to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.”’”  . . .

{¶15} Accordingly, although an employee’s behavior need not amount to misconduct, the employee must have borne some fault to establish “just cause” for a discharge for purposes of unemployment compensation.  . . .  Fault has been recognized in a variety of situations, including “willful or heedless disregard of a duty, a violation of an employer’s instructions, or unsuitability for a position.”

 . . .

{¶21} However, appellees have provided no authority standing for the proposition that a change in ownership of an employer necessarily results in a new “hire” of a retained employee for purposes of applying the Tzangas unsuitability test. Further, although appellees maintained at oral argument that the acquisition occurred in May 2021, the record does not appear to contain the date in 2021 that University Hospitals acquired Lake Health Hospital.

 . . .

{¶30} However, again, unsuitability is only one of several bases of a finding of just cause for a discharge.  . . .  Thus, contrary to Farrar’s position in her brief, it does not follow that, where the Tzangas test is unsatisfied, an employee is not at fault for the discharge for purposes of just cause. Instead, as previously addressed, whether just cause exists is dependent on the factual circumstances of the case, viewed in light of the purposes of the Unemployment Compensation Act.  . . .  Here, the review commission considered the particular facts of this case: on January 1, 2022, University Hospitals notified the coding specialists, including Farrar, of the requirement that they obtain coding certification within six months; Farrar failed to meet the deadline due to personal and financial reasons; University Hospitals provided extensions of the deadline, allowing her until November 30, 2022 to pass a certification examination; and Farrar failed to pass a certification examination prior to November 30, 2022. The review commission concluded that these facts demonstrated sufficient fault on behalf of Farrar to deem her discharged for just cause. Such a conclusion is consistent with the underlying purposes of the Unemployment Act. As the Ohio Supreme Court has cautioned:

The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, [s]he is no longer the victim of fortune’s whims, but is instead directly responsible for h[er] own predicament. Fault on the employee’s part separates h[er] from the Act's intent and the Act’s protection. Thus, fault is essential to the unique chemistry of a just cause termination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Buckeye Employment Litigation

The OSU is one of the state’s largest employers and, as a result, is a frequent target of lawsuits, which sometimes are found to have merit.  Here’s just two from this calendar year.  In the most recent, the Sixth Circuit affirmed OSU’s judgment on a failure to promote claim.  In the second, the Court reversed OSU’s judgment on a Title VII claim brought by a Ph.D student. 

In August, a divided Sixth Circuit reversed OSU’s summary judgment and a professor’s jury verdict on claims that the professor had sexually harassed and retaliated against a Ph.D student/Graduate Fellow, finding that she could be an employee protected by Title VII, that her physical pushing him away was protected conduct and that evidence was improperly excluded from trial that could have possibly help to rebut some of the professor’s defenses.  Huang v. OSU, No. 23-3469 (6^th Cir. 8/28/24).   She blamed her advisors for her initially failing her exam by unanimous vote of the committee and did not tell anyone about the alleged harassment until after she failed her Ph.D examination.  The dissent noted that she had failed to raise arguments before the trial court, and thus, waived her right to challenge certain rulings on appeal.   Moreover, some of the evidence actually was submitted to the jury, which still found in favor of the professor.  The case is very fact specific and there were no corroborating witnesses to her allegations of physical touching, but several witnesses supported the professor’s defenses. 

In October, the Sixth Circuit affirmed OSU’s summary judgment on a race discrimination claim where the plaintiff nurse had been rejected 89 times for promotion to an APP position and the hospital allegedly only employed two black nurses in that position.  Solis v. OSU Wexner Medical Center, No.  24-3230 (6^th Cir. 10/25/24).   The APP position generally required an advance degree and the hiring manager had advised her to obtain acute care experience if she wanted to be promoted.  Nonetheless, she never sought or obtained that experience or an advanced nursing degree, although she did obtain NP certification in family medicine.  She only challenged not being hired for one of the positions, which was given to a white male who had recently graduated with his masters nursing degree and had substantial and recent acute care experience and with LVADs (which would be regularly required in that department and which she lacked). 

Although she alleged a prima facie case, she failed to produce evidence that the explanation for her non-hiring was pretextual.   She could not create a disputed issue of material fact by simply subjectively asserting that the hiring manager was not credible. 

The court rejected her challenge to OSU’s reliance on his LVAD experience and graduation when it was not mentioned in the job description and she was not asked about it in any interview.

An employer is not “rigidly bound by the language in a job description.”  . . .  Nor does Title VII “diminish lawful traditional management prerogatives in choosing among qualified candidates.”  . . .  Here, Wexner was free to consider candidates’ LVAD experience as a factor external to its posted job description when selecting among suitable applicants.  . . . [his] duties as a nurse attending to patients with acute-care needs required a more advanced understanding of LVADs because of the patients’ unstable conditions. [She] lacked this knowledge. Her patients generally did not require acute care, so she had less experience with LVADs. OSU was permitted to weigh [his] LVAD-specific background in his favor when deciding whom to hire.  . . .

The Court also rejected her argument that OSU’s explanation “shifted” to only later mention the LVAD experience:

The record reveals that Wexner has consistently noted [his] significant experience in acute care as a rationale for preferring [him] over [her]. And during this litigation, the hospital has clarified that [his] prior job as an acute care nurse required specific, advanced LVAD use that [hers] did not see day-to-day as a staff nurse. Moreover, [the manager] offered additional insight into why he hired [him] over [her] that in no way contradicts the hospital’s prior justifications. As previously noted, [the manager], in a sworn deposition, stated that he preferred recent graduates because they have hands-on experience and strong muscle memory from recent rotations that can be applied to the APP job immediately. That additional reason does not constitute a “shifting justification” giving rise to pretext. Wexner did not abandon its initial hiring justification in lieu of another conflicting reason. Instead, it gave additional, permissible explanations for why Wade was the superior applicant.  

The Court also rejected her argument that the interviewers’ subjective evaluations of the candidates was discriminatory.  “Proof an employer used subjective criteria does not, without more, establish pretext.”

While we agree that the hospital used some subjective criteria in its candidate evaluation process, doing so does not demonstrate pretext. An employer may consider subjective factors like attitude, self-confidence, teamwork, and other nondiscriminatory criteria in its evaluation process.  . . . . And in fact, the job description put applicants on notice that these factors would be considered. More still, it is not within the court’s purview to investigate how [the manager] weighed candidates’ subjective qualities such as “teamwork” and “customer focused”,  . . . , when making the ultimate hiring decision.  . . . . The law does not require Wexner to make a perfect decision, nor does it forbid the hospital from making decisions that [she] disagrees with.  . . .  [She] may oppose the interviewers’ ultimate conclusions about how she faired throughout the interview process, but without more, she has not shown that Wexner acted with a discriminatory motive when placing secondary value on certain subjective qualities.

The Court also rejected her statistical evidence.  First, her expert relied on the number of qualified black applicants nationwide instead of in Central Ohio, which was the relevant labor market.  Secondly, OSU apparently contended that it did not keep track of the race of its employees or require them to disclose their race, calling into question the number of black APP nurses it employed. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

En Banc Sixth Circuit to Reconsider Olentangy School's Pronoun/Gender Identity Anti-Harassment Policy

 On Friday, the en banc (i.e., entire) Sixth Circuit Court of Appeals vacated the divided panel's decision rejecting a parent group's First Amendment challenge to the school's pronoun/gender identity anti-harassment policy, affirming a prior decision by Columbus Federal Judge Marbley.  The entire court will consider the case, which could have significant First Amendment ramifications, Title IX and maybe even affect the Court's prior decision in Meriwether v. Hartop (which had created an exception for preferred pronoun mandates if the speaker avoided using pronouns altogether).  The case is now again considered a pending appeal, has been opened to supplemental briefing and a new oral argument will be scheduled.  

FMLA Retaliation Claim Survives Dismissal Even if Employee Was Not FMLA Eligible at Time of FMLA Request

On Monday, the Lake County Court of Appeals reversed an employer’s judgment on a FMLA claim brought by a former employee who had been fired the day before she was to marry her seriously ill finance after she requested once again to leave work early.   Mahoney-Offi v. Great Expressions Dental Ctrs., 2024-Ohio-5160.   The court concluded that her complaint could state a valid claim for FMLA retaliation because she was not required to be eligible for FMLA at the time of the leave request.  If she “is ultimately able to prove that her termination was not the result of her request to leave early on December 9 but in retaliation for her prior inquiry about FMLA leave, then she has stated a viable claim for retaliation under the FMLA.”

According to the court’s opinion, the plaintiff had been requesting to take time off to care for her seriously ill boyfriend.  She had requested and been denied FMLA on the grounds that they were not married.  However, it was suggested to her by management that she would be eligible for FMLA if she married him.  Shortly thereafter, they became engaged and were scheduled to be married on December 10.  On December 9, she requested to leave work early.  Initially, it was to prepare for her wedding, but later she said it was because he had become sicker and she needed to care for him.  Knowing that she planned to marry the next day, the employer then fired her on December 9.  She filed suit under the FMLA, which was initially dismissed on the grounds that she was not eligible for leave on December 9 and had already been denied leave.

The Court of Appeals reversed on the grounds that a plaintiff may pursue a FMLA retaliation claim if she was terminated for merely requesting leave (which is a protected activity) even if she was not eligible for leave at the time of the FMLA request.   However, a jury could still rule in favor of the employer if it found that she was fired for requesting to leave early on December 9, instead of the leave which the employer knew she intended to take after she was married on December 10. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.