02/11/2024
Why workers fired for refusing Covid vaccines are starting to win in court
Liberal San Francisco is hardly a hotbed of anti-COVID vaxxers â more than 90% of the cityâs population got the shot, according to government data, opens new tab.
Thatâs partly why I found a verdict, opens new tab by a San Francisco federal jury last week in favor of six public transit workers who were fired for refusing to comply with their employerâs COVID-19 vaccine mandate on religious grounds so unexpected.
Jurors awarded the Bay Area Rapid Transit, or BART, ex-employees more than $1 million each for workplace civil rights violations, for a total of $7.8 million.
As similar cases make their way through courts around the country, plaintiffs lawyers tell me they see the verdict as a sign of more big payouts to come.
To misquote the Broadway tune, âIf you can make it in San Francisco, you can make it anywhere,â said James Lawrence, a Raleigh-based Envisage Law partner representing three musicians allegedly fired by the North Carolina Symphony after refusing the COVID vaccination based on their religious beliefs.
The lawsuits I've reviewed, whether targeting a food conglomerate in Arkansas, opens new tab, an airline in Hawaii, opens new tab, hospitals in Oregon, opens new tab or a host of cities, opens new tab, revolve around similar claims that employers wrongly refused to accommodate devout workers who asked to be exempt from COVID-19 vaccine mandates.
Alleging violations of Title VII of the Civil Rights Act of 1964, plaintiffs who self-identify as Christian, Catholic, Jewish, Muslim, Buddhist and other faiths say they were discriminated against on the basis of religion, and that they could have masked, tested, worked remotely or taken other measures that would have allowed them to stay on the job.
The employers have typically countered that exempting the workers from the vaccine would have caused undue hardship to their businesses, and that their mandates were put in place to stem the spread of the coronavirus and keep their workforce safe.
In 2023, the U.S. Supreme Court upped the standard, opens new tab for âundue hardshipâ to mean that granting an accommodation would impose a âsubstantial costâ on the business, Jeffrey Hirsch, a professor at the University of North Carolina School of Law who specializes in labor and employment law, told me.
âThat makes it easier (for plaintiffs) to bring these claims."
One of the first verdicts came in June, when a federal jury in Chattanooga awarded, opens new tab a Tennessee woman $687,000 â including $500,000 in punitive damages â against Blue Cross Blue Shield of Tennessee.
Tanja Benton, who identifies as a Christian, objected, opens new tab to the vaccine because she alleged cell lines from aborted fetuses were used in its research and development, which âshe believed to be contrary to Godâs law,â her lawyer Doug Hamill wrote.
(Multiple public health authorities confirm, opens new tab that the vaccines themselves do not contain fetal stem cells.)
Hamill did not respond to a request for comment, nor did Benton reply to a message sent via LinkedIn.
Benton, a data scientist who rarely interacted with clients, proposed that she continue to work remotely from home unvaccinated. Blue Cross allegedly refused and gave her 30 days to look for another job with the company that didnât require vaccination. When she didnât find a position, she said she was fired.
A Blue Cross spokesperson said the company "knows that vaccines save lives," and believes its "vaccine requirement was the best decision for our employees and members, and that our accommodation to the requirement complied with the law."
The U.S. Equal Employment Opportunity Commission in 2021 guidance, opens new tab said employers should âgenerallyâ proceed on the assumption that an employee's request for religious accommodation is based on sincerely held beliefs.
Blue Cross and its outside counsel from Holland & Knight, however, suggest in a pending motion, opens new tab to set the verdict aside that Bentonâs objection to the vaccine was not part of a âcomprehensive belief system.â Noting for example that sheâd been had flu vaccinations in the past, the defense argued her objection was a âone-off belief against COVID-19 vaccinationâ that doesn't merit legal protection.
In the BART case, defense counsel appeared to focus less on the sincerity of the plaintiffsâ beliefs and more on the undue burden that the subway system claimed accommodation would present.
According to the complaint filed in San Francisco federal court in 2022, 179 of BARTâs 3,900 employees requested religious exemptions to its COVID vaccine mandate, which was put in place even though unvaccinated passengers could still freely ride the trains.
About 70 of the employee requests â which included fetal stem cell-related objections as well as concerns such as âalteration of a divinely-created immune systemâ â were granted, but in every instance, BART found it would be an undue hardship to provide an accommodation.
For workers with jobs such as station agent or police officer, I can understand how working from home wasnât an option.
But one employee had a full hazmat suit and offered to wear it while working, plaintiffs counsel Kevin Snider of the non-profit Pacific Justice Institute told me. Another cleaned empty trains at the end of the line and unsuccessfully argued she could work alone while masked.
No accommodation âwas ever good enough,â Snider said.
A BART spokesperson declined comment.
BART lawyers did manage to narrow the case when Senior U.S. District Judge William Alsup in pre-trial ruling, opens new tab nixed the plaintiffsâ claims that their First Amendment right to free exercise of religion had been violated, ruling the vaccine mandate served a legitimate public purpose in stemming the spread of COVID-19.
However, a similar âfree exerciseâ claim survived against the North Carolina Symphony in a ruling, opens new tab by U.S. District Judge James Dever in Raleigh in late September.
Two French horn players, both Buddhists, objected to the taking the COVID vaccine because it was allegedly tested on animals and used fetal cell lines, while a Jewish violin player said he believes âhis body is a templeâ and cannot be altered or defiled by medicine.
In refusing to dismiss the complaint, opens new tab, Dever wrote that the plaintiffs plausibly alleged that the symphonyâs president in denying their requests wanted to promote a âvaccination âculture.ââ
A spokesperson told me via email that the symphony's âpriority has been to protect the health and safety of our musicians and staff,â adding that the vaccine mandate was lifted last year.
