Courts have continued this month to issue decisions relating to fallout from the COVID pandemic. In one, the Sixth Circuit reversed an employer’s summary judgment on a Title VII religious discrimination claim alleging that the plaintiff had been fired for not conforming to the employer’s religious beliefs which were hostile to, among other things, his social distancing during the pandemic. Amos v. LAMPO Group, LLC, No. 24-5011 (6th Cir. Aug 6, 2024). In another, the Sixth Circuit affirmed the continuation of a state law lawsuit where the plaintiff had been fired for refusing the COVID vaccine and rejected the employer’s argument that it was immune as a federal contractor because the government’s vaccine mandate was unlawful. Riggs v. UCOR, LLC, No. 23-6116 (6th Cir. Aug. 2, 2024). Finally, the Ohio Supreme Court held that civil service employees were permitted to appeal whether their COVID furlough was a layoff governed by seniority rules. Harmon v. Cincinnati, No. 2024-Ohio-2889. “Common pleas court [was] not divested of jurisdiction to hear city employees’ administrative appeal regarding whether separation from employment under temporary emergency-leave program implemented in response to COVID-19 pandemic constituted a layoff.” The Court found that the bargaining agreement permitted civil service appeals and the civil service commission’s failure to conduct an evidentiary hearing when it should have done so did not destroy jurisdiction or render it a non-quasi-judicial matter.
In Amos, the plaintiff alleged that the defendant
employer’s policy “was that prayer was the “exclusive way to prevent COVID
infection,” and that anything else showed a “weakness of spirit” and was
“against the will of God.” . . . . Employees that did take precautionary measures
were “mocked and derided.” He also alleged that he “was criticized,
specifically, for social distancing and wearing a mask.” He followed “his own deeply held religious
beliefs, including the “golden rule” of doing no harm to others and promoting
the safety of his own family.”
Ultimately, he alleged that he was fired in July 2020 for “lack of
humility” and because [he] “was not a good fit because he ‘would stand off to
the side.” He claimed “that his
termination was based on his failure to submit to Lampo’s religious practices
and his expression of his own religious beliefs with regard to COVID measures.”
While most religious discrimination claims are based on the
employer’s failure to accommodate an employee’s beliefs, it is also true that
religious nonconformity is covered because “Title VII “preclude[s] employers
from discriminating against an employee because . . . the employee fails to
comply with the employer’s religion.”
As with all other types of
religious-discrimination claims, the employer is accused of discriminating
against the employee on the basis of religion. Here, however, it is the
employer’s religion that is the focus. But that doesn’t make the discrimination
“reverse.” The employer is still the one allegedly doing the discriminating.
The only difference is the alleged motivation—who holds the relevant religious
beliefs. If anything, “reverse” might suggest—strangely—that it is the employee
doing the discriminating. Accordingly, we will refer to this claim as one for
“religious nonconformity.”
The trial court indicated that the plaintiff did not
sufficiently allege that the employer failed to accommodate his own religious
beliefs and dismissed his noncomformity claims as possibly unrelated to any
particular religious belief and based simply on disdain. The Court, however, found that he had sufficiently
alleged a non-conformity claim. He “provides
sufficient facts to support a claim that [the employer] discriminated against
him because he did not share [its] religious convictions, and so has met his
burden.”
Moreover, the Court also concluded that he had sufficiently
alleged that the employer had failed to reasonably accommodate his own
religious beliefs. He “just need[s] to plausibly allege that [he
was] denied a religious accommodation and treated differently because of [his]
religion.” In particular, he alleged that the employer
violated Title VII . . . by
refusing to respect and/or accommodate Plaintiff’s strongly held religious
belief that ‘God helps those that help themselves,’” that he has “a deep
religious devotion . . . to follow the ‘golden rule’ to do no harm to others,”
and that “[the employer] terminated [him] for taking scientifically prescribed
precautions, as required by his sincerely held religious beliefs.” . . . . In
short, [he] pleads that his deeply held religious beliefs required him to take
COVID precautions to avoid inflicting injury on others, as well as to protect
his family—and that [the employer] did not allow him to do so and ultimately
terminated him. This is a plausible claim, supported by specific factual
allegations . . .
Finally, the Court rejected a distinction between religious
beliefs and religious conduct.
Title VII defines “religion” as
“all aspects of religious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably accommodate . . . [the]
religious observance or practice without undue hardship on the conduct of the
employer's business.” . . . . And the Supreme Court has explicitly denied
attempts to create a distinction between religious belief and conduct in the
Title VII context. . . . . Thus, religious practice is one of the protected
characteristics that cannot be accorded disparate treatment and must be
accommodated.”
In Riggs, the employer was a federal contractor who
was required by federal regulation to maintain a safe workplace. Prior to the government requiring contractors
and employers to mandate COVIC vaccines, the employer implemented such a
policy. The Court enjoined the
government’s mandate on government contractors, but not OSHA’s similar
requirement on employers. The plaintiff’s request for a religious accommodation
was denied by the employer and she was fired in January 2022 for refusing to be
vaccinated. She filed suit under a state
law that prohibited the termination of employees who refused to get vaccinated.
The employer claimed that it was immune
from such suit because it was a federal contractor which was required to
mandate the vaccination.
Federal contractors may assert
derivative immunity as a defense where (1) the government “directed” the
contractor to take the action for which the plaintiff seeks to hold it liable,
and (2) the government’s direction was legally valid, meaning that federal law
authorized the government to issue that directive.
In this case, the employer could not assert that the
government’s direction was legally valid.
The Court had already enjoined the contractor mandate and the Supreme
Court later struck down the OSHA mandate.
Further, the employer had implemented its policy before either
government mandate. “A contractual provision granting UCOR the discretion to
choose which measures it felt were “reasonable” to protect the health of its
employees does not amount to a command from the government that UCOR implement
a Covid-vaccination policy.”
Finally, in Harmon, the employees challenged the City’s
Temporary Emergency Leave policy, which was implemented because of the
(correctly) anticipated reduction in tax revenues and increased expenses being
caused by the COVID pandemic and shutdown.
The employees alleged that it violated the City’s Civil Service rules
governing layoffs. After appearing
before the City Civil Service Commission, the Commission ruled that the TEL was
not a layoff and that the employees were not entitled to an evidentiary hearing
as to whether the TEL was a layoff. The
employees appealed and the court reversed.
The City then appealed, arguing that the employees’ claims should be
submitted to mandatory arbitration under their collective bargaining agreement
and the Commission is entitled to interpret its own rules, but the appellate
court affirmed. The Supreme Court
likewise affirmed.
The Court rejected the argument that the appeal was
preempted by the CBA because it explicitly permitted employees to appeal layoffs
to the Commission. Arbitration was not mandatory
in such cases.
The City also argued that only Commission decisions which result
from quasi-judicial proceedings are appealable and a mere “appearance” before
the Commission does not satisfy that requirement. “A quasi-judicial proceeding
is a proceeding that requires notice, a hearing, and the opportunity to
introduce evidence.” The Court found
that this is a question of law:
“Whether there is an adjudication
depends not upon what the administrative agency actually did, but rather upon
what the administrative agency should have done. Where the
administrative agency should have given notice, conducted a hearing and
afforded the parties an opportunity to be heard and to introduce evidence, the
order is the result of an adjudication even if the administrative agency fails
to afford such notice and hearing.”
. . . .
Just as it did below, the city’s
arguments here rest on the fact that the commission determined that a full
hearing was unnecessary because, in its view, the TEL program was not a layoff.
We conclude that the commission exercised its discretion in deciding that the
program was not a layoff, rendering the appearance a quasi-judicial proceeding.
. . . . . And while the commission did
not follow the requirements under Cincinnati Civil Service R. 17 for conducting
a hearing, it was required to do so.
. . . . Because there was some doubt regarding
whether the program was a layoff, the commission should have proceeded with a
hearing to allow the parties to argue their positions. As the First District
noted, “[t]he commission may not abandon its own rules and sua sponte decide
that the leave under the TEL program was not a layoff prior to holding a
hearing on that issue.” 2023-Ohio-788 at ¶ 19. If the commission had conducted
a hearing, there would have been no doubt that the common pleas court had
jurisdiction over Harmon and Beasley’s appeal, and a hearing would have
provided greater insight and detail into the matter for the court to consider
in making its decision. Regardless, because the commission’s decision was the
result of a quasi-judicial proceeding, the common pleas court had
subject-matter jurisdiction to review the decision on administrative appeal and
to ultimately remand the matter to the commission for a hearing.
In short, “[t]he commission was required to conduct a
hearing on [their] appeals. Since the commission should have conducted a
hearing, its failure to do so rendered its decision the result of a
quasi-judicial proceeding and [they] were thus permitted to appeal the
commission’s decision to the court of common pleas under R.C. 2506.01(A).”
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.
