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 (6th 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.
