Employer Loses Challenge to NLRB's McClaren Macomb Restrictions on Severance Agreements

Last week, the Sixth Circuit Court of Appeals affirmed enforcement of the NLRB’s order against an employer which had failed to negotiate with the union about the effects of a layoff and presented severance agreements to the laid off employees without first informing or negotiating with the union about the terms of those agreements.  NLRB v. McLaren Macomb, No. 23-1335/1403 (6^th Cir. Sept. 19, 2024).   Because that conduct – by itself – was sufficient to violate sections 8(a)(1) and (5) of the NLRA, the Court declined to consider the employer’s objections to the NLRB’s alternative conclusion that the terms of the severance agreement – concerning confidentiality and non-disparagement – constituted independent 8(a)(1) violations.   Accordingly, the employees were ordered reinstated with backpay. 

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.

Sixth Circuit Questions Whether Agreement to Simple Release of All Claims Was Voluntary When Union Gave Plaintiff Poor Advice and It Failed to Identify "Discrimination" Claims.

Yesterday, a divided Sixth Circuit reversed an employer’s summary judgment on racial discrimination and retaliation claims.  Moore v. Coca-Cola Bottling Co., No. 23-3775 (6^th Cir. 8/22/24).  The majority agreed that the plaintiff produced enough evidence to demonstrate a factual dispute about whether he was treated differently than white co-workers when he was terminated for testing six times higher than the prohibited threshold while two white co-workers were treated more leniently under comparable circumstances.  The Court refused to enforce the release of claims he signed in a last chance agreement given for insubordination despite his college education and failure to request more time to consider it when the entire meeting lasted about 10 minutes, the union vice-president encouraged him to sign it and the release of “all” claims against the employer arising out of employment did not specifically mention discrimination claims.   The Court remanded for the trial court’s consideration whether placing him on a second chance agreement and requiring random drug testing after he tested positive for marijuana below the employer’s prohibited threshold was discriminatory. The Court also found that the employer waived its affirmative defense to his failure to exhaust administrative remedies by failing to raise with the district court the plaintiff’s failure to file a Charge of Discrimination about the second chance agreement or mention it in a later charge about his suspension and last chance agreement. 

According to the Court’s opinion, the plaintiff had received college degrees in fashion design and hospital administration, but joined the defendant employer in 2015 as a warehouse employee after realizing his hospital career was not going further.   He began filing discrimination complaints with HR starting in August 2016, complaining about unpaid suspensions, etc.  Following an April 2017 accident where he significantly damaged an autonomous vehicle with a forklift he was driving, he was drug tested, but tested below the prohibited threshold in the employer’s policy, which provides for suspensions without pay, random testing for 24 months and immediate termination with another positive test within 60 months under a second chance agreement (SCA).   Although he objected to being placed on a SCA when he tested below the threshold, his supervisor -- who never saw the drug test results --  told him that he would be fired if he refused.  He did not ask for additional time to consider the agreement.

In June 2017, the plaintiff and other employees objected in salty language to a new operations directive.   He was then informed that he was being terminated for insubordination, but the union negotiated a last chance agreement for him the following month.  He met with the union vice president and his supervisor for ten minutes and was told that he would not be reinstated without signing the agreement, which contained a release of all claims against the company and the union.  Again, he did not request more time to review and consider the agreement.  He filed a Charge with the Ohio Civil Rights Commission challenging the termination (when other white employees also used salty language without being terminated), the LCA and his failure to receive backpay from his suspension, but did not mention the SCA.    A year later, he tested positive for marijuana at 6 times the prohibited level and was terminated in July 2018.   While he does not dispute that he tested positive, he challenged being placed on random drug testing under the SCA in the first place.  In May 2019, he filed an EEOC Charge alleging that he was treated differently than white co-workers. 

 

The district court found that the plaintiff had waived his challenge to the SCA and his suspension by signing the release in the LCA.  It also found that he could not show that the employer’s explanation for his termination -- his positive drug test -- was pretextual.   A divided Sixth Circuit reversed.

In the lengthiest part of the decision, the Court focused on the questions raised about whether the release of claims contained in the LCA were voluntary, and thus, enforceable under Title VII.   The majority discounted his college education for lacking legal training and his failure to request any time to consider the LCA because the union officer had told him to sign it if he wanted to be reinstated (and possibly poor legal advice) and the entire meeting lasted only 10 minutes.  It also discounted the fact that he had union representation and was never given an explicit deadline by the employer when he had to sign it.    In considering whether a release is valid and enforceable, courts will consider the following factors:

“(1) [the] plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.” Id. While weighing these factors, we also “must ‘remain[] alert to ensure that employers do not defeat the policies of . . . Title VII by taking advantage of their superior bargaining position.’”

Interestingly, the majority found that the union’s encouragement to sign the agreement should be held against the employer even though the union was more accurately aligned with the employee.  One has to wonder if merely a friend had similarly given him poor advice would similarly affect the court’s analysis.  In short, it found that a jury should be able to later decide whether his signature should be considered voluntary:

It is unclear from the record whether [the plaintiff] was required to sign the LCA the same day that he was presented with it, or if he was able to request additional time to consider the contract’s terms. Similarly, the record indicates that [he] did not have an attorney present but does not provide any information as to whether [he] would have been permitted to request one prior to his signing the LCA. Most telling is that Arrington, the union representative in the room with [him] when he signed the LCA, told [him] to just sign the LCA and that it was “better to fight with a job than fight without a job.”  . . .  Reasonable jurors could find that Arrington’s statements indicated that [his] discrimination claims would survive his signing the LCA and that they influenced [his] signing the agreement.

Although Moore holds associate’s and bachelor’s degrees, his education does not provide him with any type of legal, managerial, or contractual background that would be relevant to interpreting the LCA’s terms in a manner essentially at odds with what the union representative told Moore. . . .

The Court also questioned whether the simple language releasing all claims against the employer and union relating to his employment arising prior to that date was sufficiently clear when the simple sentence did not explicitly mention discrimination or statutory claims.

In other cases where we have found that such provisions are straightforward in their terms, the contracts have explicitly stated that the employee was waiving the right to bring a discrimination suit,  . . . or that an individual must “arbitrate any legal dispute relating to their employment . . . , including all state and federal statutory claims,”  . . . . The LCA that [the plaintiff] signed is not precise in explaining what was meant by “any and all liability of any kind whatsoever relating to his employment with” CCBC, and [he] lacks a background that would help him to interpret this term.  Most important in [his] case is [the union officer’s] statement in the context of signing the LCA that it was “better to fight with a job than fight without a job.”

 . . . . As discussed above, particularly important in this case are the facts that (1) the union representative effectively suggested that [the plaintiff] would be able to seek legal recourse notwithstanding [his] signing of the agreement; (2) the agreement was not clear with respect to what rights [he] was waiving; and (3) [the employer] was in a better bargaining position. In other words, consistent with our caselaw, [his] education and experience are not “dispositive,” but rather are considered in the full context of the other waiver factors.  . . . Indeed, the union representative’s comments alone suggest that the waiver was not likely knowing and voluntary: it is natural for an employee to trust that their representative’s representations concerning that employee’s rights are fair and accurate.

The Court also rejected the employer’s accurate argument that the plaintiff had failed to exhaust his administrative remedies because he never filed a Charge of Discrimination challenging the SCA because the employer never raised this argument in its summary judgment motion before the trial court.  The failure to exhaust administrative remedies is an affirmative defense.

In addition, the Court found that the plaintiff had produced sufficient evidence for the jury to consider whether the justification for terminating him -- the admitted positive drug test -- was pretextual because it was insufficient to motivate his discharge when other employees were not terminated under similar circumstances.  He alleged that he was targeted for drug testing six times -- more than any other employee -- even though two of his co-workers “were permitted to come to work under the influence of alcohol or drugs and were not likewise penalized.”   He alleged that one co-worker “was likewise on an SCA, but was not tested during this time, nor was [that employee] fired after he had a positive drug test while on a SCA” following an accident.  Instead, the white co-worker wasn’t fired for more than a year after he failed a third drug test.

A two-strikes policy for firing Black employees and a three-strikes policy for firing white employees would plainly constitute disparate treatment and raise pretext concerns. At this stage, all that we look for is similarly situated comparators who “were not fired” despite engaging in “substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.”

Because the trial court did not consider pre-LCA events, the Court remanded for further consideration the plaintiff’s argument that that he was placed on random drug testing under the SCA even though it was not factual that he failed the first drug test. 

Finally, the Court had no difficulty in finding adequate evidence for the jury to consider about the retaliation claim.  The plaintiff had filed many internal discrimination grievances with HR, which were known to his manager.  He submitted one complaint a mere week before the final random drug test that resulted in his termination. “Given the temporal proximity between Moore filing his EEO grievances and the adverse employment action taken against him, Moore has shown “sufficient temporal proximity to establish a causal connection.”

 

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.

A Tale of Two FCRA Reports

This week, the Sixth Circuit addressed the Fair Credit Reporting Act in two different opinions.  In the first, the Court found that Experian violated the FCRA when it failed to investigate or clarify a consumer report about outstanding child support obligations after the consumer provided it with evidence from the court that he owed no outstanding child support obligations.  Berry v. Experian Information Solutions, Inc., No. 23-1961 (6^th Cir. Aug 19, 2024).    In the second, the Court found that the job applicant could not sue an employer for failing to provide him with a copy of his complete consumer report after it provided him with a copy of the partial (and accurate) report when he could not identify how he would have acted differently or been able to cure his prior failure to self-disclose a conviction. Merck v. Walmart, Inc., No. 23-3698 (6^th Cir. Aug. 20, 2024). 

In Berry, the plaintiff paid his wife directly instead of through the state agency, which recorded a deficiency.  When they reconciled, he obtained a court order that abated the non-existent support debt.  However, he was denied student loans because Experian reported information from the still-inaccurate state government database.  He sent copies of the court orders to Experian, which continued to rely on the state database and did not update its report.  He sued alleging that Experian negligently or willfully continued to report inaccurate information in violation of the FCRA.  The district court granted Experian judgment on the pleadings because it was required to report the state agency’s findings.  However, the Sixth Circuit reversed “[b]ecause [the plaintiff] sufficiently pleaded that Experian did not adopt reasonable procedures to ensure maximum possible accuracy and did not reasonably reinvestigate [his] consumer report after he challenged its accuracy.”  Consumer Reporting Agencies

must “adopt reasonable procedures” for reporting, see id. at § 1681(b), that “assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). If a consumer disputes a report’s accuracy, the CRA must “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the [consumer’s] file.” 15 U.S.C. § 1681i(a)(1)(A). If a CRA negligently or willfully violates the accuracy mandate, the consumer may bring suit. Id. at § 1681n (allowing private right of action for willful noncompliance); § 1681o (same for negligent noncompliance). Relevant here, the FCRA states:

Notwithstanding any other provision of this subchapter, a consumer reporting agency shall include in any consumer report furnished by the agency in accordance with section 1681b of this title, any information on the failure of the consumer to pay overdue support which— (1) is provided—

(A) to the consumer reporting agency by a State or local child support enforcement agency; or

(B) to the consumer reporting agency and verified by any local, State, or Federal Government agency.

15 U.S.C. § 1681s-1.

The Court found that to prevail on a claim that the CRA failed to have reasonable procedures to assure maximum possible accuracy, the plaintiff must plead and prove that the information is inaccurate.

An inaccuracy in a consumer report occurs when “a CRA report[s] either ‘patently incorrect’ information about [the consumer] or information that was ‘misleading in such a way and to such an extent that it [could have been] expected to have an adverse effect [on the consumer].’” . . .  In other words, a consumer can demonstrate an inaccuracy where a report was materially misleading or incomplete, even if it was technically accurate. Consequently, “accuracy” under the FCRA encompasses truthfulness and completeness.

Because the FCRA is designed to promote accuracy, “false impressions can be just as damaging as false information.” . . . For example, in Twumasi, the plaintiff Uber driver was fired after the CRA reported to Uber that the plaintiff had been involved in three car accidents.  .. .  While the Ohio Bureau of Motor Vehicles (BMV) furnished information to the CRA that did demonstrate that the plaintiff had been involved in three accidents, the BMV did not include a police report and court document adjudging him not at fault for two of the accidents.  . . . Although the plaintiff submitted this counter-evidence of his lack of fault to the CRA, the CRA did not change his consumer report.

Similarly, in this case, “Experian’s [alleged] omission of the court orders and its failure to inquire further resulted in a consumer report that was “‘misleading in such a way . . . that it [could have been] expected to have an adverse effect . . .’”

That being said, a dispute ensued about whether Experian was required to remove the state report or merely supplement or clarify it with the court order.  The Court agreed that Experian need not remove the allegedly erroneous state agency report.  The dissent/concurrence indicated that the plaintiff had waived the supplement theory argument, thus losing the appeal.  However, the majority remanded the case back to the district court to consider the supplement theory.    In practice, this means that the plaintiff may still not have been able to obtain student loans with ambiguous information and he should focus his efforts on clearing his credit with the state agency.  

In Merck, the plaintiff “applied to work at Walmart, [but] he forgot to disclose an old misdemeanor conviction.”  He was given a job offer conditioned on passing a background check.  “Before an employer can take any adverse action against a prospective employee based on a negative consumer report, the Fair Credit Reporting Act requires that the employer provide him with a copy of the report.”  The plaintiff was provided with “an incomplete version of the report that listed his misdemeanor and indicated he was “not competitive” for a job at Walmart” -- because of the failure to previously disclose the conviction.   He was provided with information to dispute the accuracy of the report, but did not do so. Unlike the plaintiff, Walmart was also informed that he had not self- disclosed the conviction. He alleged that he would have at least questioned the matter if had known it was the failure to self-disclose instead of the prior conviction that caused him to lose the job.     The Court found that he lacked sufficient injury from the incomplete report to sue Walmart when he did not identify how he would have changed the result and the undisputed evidence showed that he could not change the result. 

Walmart acknowledged that if [the plaintiff] had initially disclosed the misdemeanor, he would have been scored a “Competitive” applicant. But a Walmart employee also testified that, because the background report contained accurate information about his conviction, his only option under then-effective Walmart policy was to reapply—in other words, he could not have changed the outcome by explaining the mistake. And although [the plaintiff] argues that there is “uncertainty” about Walmart’s exercise of its “final hiring authority,” see Reply Br. 22, he doesn’t point to any specific evidence in the record suggesting Walmart would have acted contrary to its policy had he been able to explain his mistake.

In fact, he applied several more times and did not even receive an interview, let alone a job offer.   Walmart only kept applications for 60 days and no local store employees knew about his failure to self-disclose, which had only been reported to corporate HR.  He also sued the CRA for disclosing an old conviction that was more than seven years old and settled with it.   

He then sued Walmart in a class action almost 4 years after he had first applied on the basis that it violated the FCRA by failing to provide him and all other job applicants a full copy of the consumer report upon which it relied.  The district court dismissed on the grounds that the alleged informational injury was not actionable because “(1) the report was not inaccurate, and (2) Walmart testified that it would not have hired Merck even if he had been able to explain that he had mistakenly omitted the misdemeanor from his paperwork.”  In short, he failed to show that he suffered an injury the statute or constitution are designed to remedy.  “Under constitutional standing doctrine, an “injury in fact” is an “invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not conjectural or hypothetical.”  The Constitution “requires a concrete injury even in the context of a statutory violation.” In other words, “plaintiffs do not have standing to assert “bare procedural violation[s], divorced from any concrete harm.”

“[T]o have standing for an informational injury, a plaintiff must allege those two elements: (1) adverse effects that (2) result from the denial of information.”  After discussing a number of analogous cases, “this boils down to a fine line between an injury involving merely the denial of information subject to mandatory disclosure by statute—insufficient for standing—and a denial of information that causes “downstream consequences”—sufficiently concrete to establish standing.”

 . . . . The denied information must specifically relate to some negative outcome that the plaintiff suffered because he was unable to use that information to his benefit. So, to show standing at summary judgment, [the plaintiff] must point to specific evidence tending to prove that he has an interest in using the withheld information—the fact that he wasn’t hired because he failed to disclose his conviction—for some purpose beyond his statutory right to receive it.  . . .  In other words, his interest in using the withheld information must extend beyond simply suing to vindicate that interest.

In this case, the plaintiff did not and could not show that being informed about the code given to Walmart -- but not to him -- about his failure to self-disclose his prior conviction would have changed the result to his benefit.   

First, and perhaps most importantly, Walmart argues that its policy meant that it would not have reconsidered its initial decision not to hire him based on his failure to disclose the misdemeanor. And Walmart’s argument is supported by the record.  . . .  More to the point, [he] fails to carry his burden to identify any evidence in the record suggesting otherwise. On appeal, he argues there’s “uncertainty” about whether his first application could have “gone differently” had he known about the true basis for his rejection.  . . .  But that’s not enough. He needed to identify specific evidence that he could have used the denied information to create some material benefit (or avoid some adverse consequence) to himself—and, given the record, he could not have used the information about the self-disclosure code to change anything about the result of his first application.  . . .  So he fails to show he suffered any downstream consequences from Walmart withholding the “R3” code during his first application and rejection.

Similarly, [he] points to nothing in the record indicating that he would have used the withheld information to do anything differently during his second and third applications to work at Walmart. Very helpful to [his] case would have been evidence that Walmart in some way relied on [his] lack of an explanation to reject his later applications outright before allowing him to fill out a new criminal history addendum. Indeed, if there were some evidence to that effect, [he] likely would have a forceful argument that the withheld information materially affected the outcome of those applications. After all, in any later calls to Walmart, he could have attempted to correct that misimpression.

But during discovery, [he] apparently couldn’t uncover any evidence that Walmart rejected his later applications because of his failure to disclose the misdemeanor. And the evidence that we do have suggests that [his] first application had no bearing on the later ones. A Walmart employee testified that Walmart retained employment application information for only sixty days. Walmart also points to a policy indicating that the self-disclosure code was “used by” human resources “only and is not relevant to the hiring manager” at the store “or the candidate.”  . . .  Walmart argues that store employees would not have known what these codes meant. And [he] points to no record evidence refuting that. So it seems that even if [he] had known about the true basis of his first rejection, the record before us suggests he couldn’t have used that information to improve his chances for his second and third applications at Walmart. If his first application had no bearing on his later ones, we simply can’t say why he didn’t get interviewed the second and third time around. [his] burden was to show the reason related to the withheld information. He has not met that burden.

Finally, [he] argues that he has a general interest in understanding “why his job application had gone wrong at Walmart” because he was searching for other employment at the time.  . . .  Abstractly, this interest is compelling. But again, [he] fails to point to any evidence in the record that he could have used the denied information to do anything differently. He might be in a different position if he introduced proof that he declined to apply to other positions because he worried that his misdemeanor might bar him from being hired or spent more time unemployed than he otherwise would have if he had known that the true issue was merely his failure to disclose. But he cannot point to any supporting evidence in the record. Other than a passing reference to feeling like a “failure” after his rejection from Walmart,  he identifies nothing to suggest any material harm that resulted from the denial of information. Indeed, he applied for one other job after being rejected. He disclosed to the employer that he had a misdemeanor conviction. He got the job. And he timed the start of his job so that he had no gap in employment.

[He] makes no mention of anything that he could—or would—have done differently to find employment had he known the true basis of his Walmart rejections. Logically, it seems that he did exactly what he should have done, had he known about the self-disclosure code—disclose the conviction to the new employer before being hired. And he got hired. As above, [he] fails to identify any evidence in the record that he could have used the withheld information to do anything differently during his job search.  . . . So he has not suffered any downstream consequences to his broader job search, either.

The Court also rejected his argument that he was injured from denial of procedural due process. “A private employer—even in a contract with one of its employees—cannot alone create the kind of “legitimate claim of entitlement” to a property interest that the state has the power to confer.”

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.

Federal Judge Rules FTC Regulation Banning Non-Compete Agreements "shall not be enforced . . . . on September 4, 2024, or thereafter."

 Yesterday, Judge Ada Brown in the Northern District of Texas struck down the FTC's new regulation banning non-compete agreements, which was set to become final in two weeks on September 4, 2024.  Ryan LLC v. FTC, Case No. 3:24-cv-00986 (N.D. Tx Aug 20, 2024).   While the FTC plans to appeal, employers have some breathing room waiting for next steps.  The Court had previously preliminarily enjoined the rule only against the parties to the litigation.  

The Court's Order states in relevant part as follows:

    The Court sets aside the Non-Compete Rule, 16 C.F.R. § 910.1–.6, and the Rule shall not be enforced or otherwise take effect on September 4, 2024, or thereafter. This is a final and appealable judgment. See Fed. R. Civ. P. 54. All relief not expressly granted is denied.

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.

August Brings More Decisions Relating to COVID Fallout.

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 (6^th 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 (6^th 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).”

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