It is Friday afternoon at the end of the month. Many of you are thinking about scooting out as early as possible. Maybe you plan to watch the NBA playoffs
or the NFL draft
. Maybe you are meeting friends for happy hour
. Before you leave to enjoy the weekend, though, The Bullard Edge
has a two-question current events quiz for you.
This week’s topic: religious discrimination. Good luck.
In 2008 JetStream Ground Services assumed a contract with United Airlines to clean aircraft cabins at Denver International Airport. While JetStream apparently hired a high number of the employees of the prior contract holder, it did not hire five Muslim women who for religious reasons requested to wear hijabs and long skirts (instead of the uniform cap and pants). The women and EEOC sued, alleging religious discrimination. JetStream argued that not hiring the women had nothing to do with accommodation; instead, it asserted it did not hire the women because their prior employer did not recommend them.
A federal jury in Colorado returned a verdict on Thursday. Who won?
EEOC announced yesterday
that it has filed a religious discrimination lawsuit against a hospital in North Carolina. According to the agency, the hospital requires employees to receive a flu vaccination annually by December. While an employee may request an exemption to this requirement based on his or her religious beliefs, all requests for exemption must be made by September 1. Late requests are described as “subject to being denied.” In 2013 several employees requested religious exemptions to the vaccination requirement based on their religious beliefs; however, the requests were made after September 1, 2013 and were denied. None of the employees received vaccinations and, for that reason, all were terminated. The hospital has not responded to the lawsuit yet so we do not know much about its reasoning (e.g., what is the rationale for the deadline).
Assuming the facts as alleged by EEOC are true, is the hospital likely to be successful arguing that its September 1 deadline is lawful?
While you are thinking about the two quiz questions, I am providing you with an original oil painting for enjoyment. It is called Old Kitty Subway. The artist is my daughter Annie (age 11 at the time).
Answer to Question #1
The jury returned a verdict in favor of JetStream. It found that neither the women nor EEOC had proven discrimination. The case is EEOC v. JetStream Ground Services, Inc.
(USDC for the District of Colorado, Case Number 1:13-cv-02340). The court entered judgment today.
As a reminder, employees have religious rights in the workplace under both federal and Oregon law. Where an employer is on notice that an employee has a sincerely held religious belief and needs accommodation related to that belief, it must reasonably accommodate that belief unless providing accommodation would result in undue hardship. The EEOC says
that an “accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
In this case, it would appear that the jury never got to the question of undue hardship. Instead, the employer argued that it did not hire the women because of their qualifications.
Answer to Question #2
If you said “yes” you are wrong. If you said “no” you are wrong. The correct answer is “maybe” (typical lawyer answer).
We do not have enough information on this matter to know the answer in this case. The EEOC summarizes the issue well in a technical assistance document entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
(2009). Consider the agency’s response to Question 13 (footnotes omitted).
13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Further, in a 2012 informal discussion letter
responding to a question about health care workers' requests for exemption from employer-mandated vaccinations, the EEOC stated that the “[f]acts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation.”
Applying all of this to the North Carolina hospital sued this week by EEOC, The Bullard Edge
is curious to know (a) the rationale for the September 1 deadline and (b) whether any consideration is given to “late” requests or whether they are always denied.
Enjoy the weekend. Best regards,
The Bullard Edge