The EEOC’s first-ever lawsuits filed against companies over failure to grant employee religious exemptions to Covid-19 vaccine policies signal the commission may be ready to bring many more such cases now that a US Supreme Court decision has eased their path.
The Equal Employment Opportunity Commission last week filed a pair of lawsuits under Title VII of the 1964 Civil Rights Act against Hank’s Furniture and United Healthcare Services Inc. The agency claimed that both companies didn’t accommodate their employees’ sincerely held beliefs because they refused to let them opt out of the vaccines.
Following the Supreme Court’s Groff v. DeJoy decision in June, an employer must now demonstrate “substantial increased costs” to their business to deny an employee’s religious accommodation request under Title VII. This higher bar for employers gives EEOC a greater likelihood of succeeding in these claims, according to employment attorneys and legal scholars.
“It does signal that the EEOC is going to be taking a stronger approach to denials of religious accommodation requests post-Groff than perhaps they were doing before,” said Tracey Diamond, an employer-side labor and employment attorney at Troutman Pepper Hamilton Sanders LLP. “It is definitely at the forefront of the EEOC’s agenda right now.”
The agency appears to have plenty of relevant complaints from workers. It saw a dramatic increase in religious charges in the 2022 fiscal year, with 13,814 charges compared to the 2,111 charges filed in FY2021, prompted largely by an uptick in vaccine-related religious charges.
New Lay of the Land
In Groff v. DeJoy the Supreme Court decided that the “undue hardship” standard that employers must meet to deny a reasonable religious accommodation request under Title VII means more than “de minimis” hardship. An employer must now show “substantial increased costs in relation to the conduct of its particular business” before denying an accommodation, the court said.
While avoiding a wholesale change to the standard to match the employer burden under the Americans with Disabilities Act, the ruling is still expected to change the way courts have interpreted company obligations for decades.
“I think the regulatory bodies such as the EEOC are now enforcing the law of the land in its new form,” said Aaron Holt, an employer-focused attorney at Cozen O’Connor P.C.
The EEOC declined to comment on current or future litigation.
The high court also addressed the EEOC’s current guidance on religious accommodations, and said that it likely wouldn’t be affected by the decision.
The EEOC’s 2020 Covid-19 vaccine guidance on workplace bias issues says that an employer must provide a reasonable accommodation for religious beliefs that prevent a worker from receiving the vaccine under Title VII. It was updated with an addendum following Groff to incorporate the new higher bar for employers.
The guidance permits employers to ask for additional information if they have an objective basis for questioning the sincerity of a particular belief. The agency also published a sample form for employers to use for religious accommodation requests from workers.
More Chances of Success
Prior to the Supreme Court’s decision in Groff, many cases filed by workers over religious or health-related objections to workplace Covid-19 vaccine mandates were rebuffed.
A Bloomberg Law analysis showed that workers had filed at least 66 lawsuits against private employers from September 2021 to May 2022 for refusing to grant exemptions or for providing insufficient accommodations. Judges rejected workers’ requests for immediate court orders blocking enforcement of those policies in 22 of those challenges.
The EEOC also filed two religious discrimination lawsuits in 2016 pertaining to exemptions for the flu vaccine, which settled and ended with summary judgment granted for the defendant, respectively.
The EEOC’s religious discrimination cases will also test the boundaries of the application of Groff, which doesn’t directly tackle vaccine mandates.
“It makes perfect sense that the EEOC post-Groff would be testing the boundaries or trying to explore the extent to which the law around religious accommodation changed post-Groff, and it makes sense to look at the vaccine cases because we’re looking at so many of them,” said Sarah Benedict, a labor and employment attorney at Davis Wright Tremaine LLP.
In its case against United Healthcare Services filed Sept. 19, the commission claims that the company refused to grant a religious exemption to an employee who worked from home full-time and later fired her when she didn’t get vaccinated within 30 days.
Her lack of face-to-face interaction with other employees may strengthen the EEOC’s argument that it wouldn’t be a burden on the employer to grant her a religious exemption to their vaccination requirement, employment attorneys said.
The EEOC’s case against Hank’s Furniture, filed the same day, deals with an assistant manager fired after requesting accommodation to exempt her from mandatory vaccination due to her Christian beliefs. The EEOC said the company could have honored her request without undue hardship.
“If the EEOC had brought these cases before Groff, they probably would have lost based on the bulk of case law in the lower courts,” said Marcia McCormick, an employment discrimination professor at Saint Louis University School of Law.
Through its litigation, the EEOC may have to confront issues such as the impact of an employee’s refusal to get vaccinated on co-workers’ health, and whether that is grounds enough for an employer to claim undue hardship after Groff.
Caroline Corbin, a constitutional law professor at the University of Miami School of Law, said that she thinks there’s a strong argument employers could make on those grounds, “but it is no longer given that the employer would prevail.”
Regardless of the EEOC’s success in bringing these cases, their filing will likely draw attention from other plaintiffs eager to claim vaccine exemptions.
“That is going to result in more litigation because anytime there’s a spotlight on an issue, it almost invariably results in more litigation,” Benedict said.
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