On August 18, 2023, the Fifth Circuit sitting en banc in Hamilton v. Dallas County unwound its long-held limitation that an adverse employment action must be an “ultimate employment decision” to be actionable under Title VII. The majority reasoned that this limitation was incongruent with the broad language of Section 703(a)(1), which states that “[i]t
Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.
Quick recap of the “religious exemption”
Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.
Determining what a “sincerely held” religious belief means
Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.Continue Reading Help! We have had a major influx in religious accommodation requests from our mandatory vaccine policy
On March 23, 2020, in Comcast Corp. v. National Association of African American Owned Media, the Supreme Court resolved a circuit split on whether discrimination claims brought under section 1981 require “but-for” causation or whether they can be analyzed under Title VII’s “motivating factor” test. The Court confirmed “but-for” causation is required.
The plaintiff in the case, Entertainment Studios Network (ESN), is an African American-owned television network operator that sought to have Comcast carry its channels. Comcast refused, citing reasons such as lack of programming demand, bandwidth constraints, and a preference for other types of programming that ESN does not offer. ESN and the National Association of African American-Owned Media sued, alleging Comcast violated 42 U.S.C. section 1981, which guarantees “[a]ll persons…the same right…to make and enforce contracts…as is enjoyed by white citizens.”
On appeal from the district court’s dismissal of ESN’s complaint for failure to state a claim, the Ninth Circuit reversed, holding ESN was only required to plead that race played “some role” in Comcast’s decision-making process.
Continue Reading Supreme Court confirms race discrimination claims under section 1981 require “but-for” causation
On February 6, 2019, the Fifth Circuit affirmed summary judgment in favor of an employer on claims that it discriminated against the plaintiff based on her transgender status. In Wittmer v. Phillips 66 Company, the plaintiff sued Phillips 66 Company for sex discrimination under Title VII in the Southern District of Texas, claiming that the company rescinded her offer of employment after learning she was transgender. The District Court granted the company’s motion for summary judgment because the plaintiff failed to establish a prima facie case of discrimination and failed to show that the employer’s reason for its decision was pretextual. In so ruling, the District Court assumed that Title VII prohibited discrimination based on transgender status and expressly stated that the Fifth Circuit had not addressed the issue.
On appeal, the Fifth Circuit Court of Appeals took notice of the fact that the Second, Sixth and Seventh Circuits have all held that Title VII protection extends to sexual orientation or transgender status over the last two years. However, the three-judge panel disagreed with the District Court’s statement that the Fifth Circuit had not previously ruled on the issue, noting that in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), the Fifth Circuit specifically held that Title VII does not prohibit sexual orientation discrimination. Ultimately, the panel did not reach the issue of Title VII’s coverage of sexual orientation or transgender discrimination because it affirmed the District Court’s determination that, even if protected, the plaintiff failed to establish a prima facie case of discrimination and also failed to offer evidence that the employer’s legitimate, nondiscriminatory reasons for its decision were pretextual.Continue Reading Fifth Circuit judge asserts Title VII does not prohibit sexual orientation and transgender discrimination
On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit broke new legal ground by ruling that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, also forbids sexual orientation discrimination. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 2017) (en banc). …
The United States Supreme Court has unanimously held that an employee may bring Title VII retaliation claims where he or she is subject to an adverse employment action, because someone else “closely related” to the employee engaged in protected activity, such as filing a charge of discrimination or opposing discrimination.
In Thompson v. North American …
The U.S. Supreme Court begins its 2008-09 term with several cases related to labor and employment, raising issues that include the protection afforded employees who participate in sexual harassment investigations, management’s right to require union employees to arbitrate discrimination claims rather than raise them in court, and whether employers calculating pension benefits must credit employees for the time they missed work for pregnancy leaves taken before pregnancy discrimination was outlawed. These cases are summarized below.
Continue Reading U.S. Supreme Court Faces Variety of Employment Issues