Case updates this week:

November 8: In Domski v. Blue Cross Blue Shield of Michigan, a federal jury in the United States District Court Eastern District of Michigan awarded over $12 million in punitive and compensatory damages to Plaintiff, Lisa Domski, a former employee of Defendant Blue Cross Blue Shield of Michigan (“BCBSM”). Defendant denied Domski’s religious accommodation request in response to Defendant’s October 2021 COVID-19 vaccine mandate. When Domski did not comply with the vaccine mandate, BCBSM terminated her employment. Domski then sued BCBSM for religious discrimination under Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larsen Civil Rights Act. The jury found that BCBSM unlawfully discriminated against Domski in two ways. First, by denying her religious accommodation request. Second, by terminating her employment because of her religious beliefs.

We have reported on several cases like Domski’s in which an employee challenged an employer’s COVID-19 vaccine mandate on the grounds of religious discrimination. Thus far, this is the first case to go to a jury. The size of this verdict is noteworthy. We will provide updates on any post-trial proceedings as well as any detectable impact this verdict might have on similar cases that are still pending, including Huber v. TIAA, discussed below.

November 13: In New Yorkers for Religious Liberty v. City of New York, the Second Circuit Court of Appeals affirmed most aspects of the District Courts’ rulings on Plaintiffs’ requests for injunctive relief, and Defendant’s motion to dismiss Plaintiffs’ facial and as-applied challenges to the Defendant’s COVID-19 mandates. The City of New York, in response to the Second Circuit’s previous rulings, updated and revamped its process for evaluating religious exemptions to its vaccine mandate policy. In its decision, the Second Circuit consolidated appeals from two cases that originated in the Eastern and Southern Districts of New York.

The Appellants in the consolidated appeal were New York City public sector employees who challenged the constitutionality of New York City’s COVID-19 vaccination mandates, as revamped according to instruction from the Second Circuit in Kane I. Both the Eastern and Southern District Courts denied Plaintiffs’ requests for preliminary injunctions seeking lost wages and back pay because Plaintiffs were “unlikely to succeed on the merits of their First Amendment claims and, in any event, they failed to show irreparable harm if they did not get preliminary relief while their case was pending.” The Second Circuit in Kane I, had already preliminarily enjoined the City from terminating any currently employed Appellants or requiring them to opt into an extended leave program while their requests were being reconsidered. So, back pay and lost wages did not apply to them. The remaining Appellants had been terminated before the lawsuit began. The non-monetary damages that accompany termination from employment had already occurred. Their monetary damages were “compensable, not irreparable.” Thus, the terminated Plaintiffs were not entitled to a preliminary injunction on these claims.

With respect to the Appellants’ request to rescind the Vaccine Mandate, the Second Circuit concluded that the claim was moot because it had already been rescinded and Appellants did not show a reasonable expectation of its reinstatement. In addition, the Second Circuit affirmed the District Courts’ decisions to dismiss the facial challenges because there was no evidence of malice by the City of New York toward religion in enacting the vaccine mandate.

The Second Circuit applied rational basis review to the as-applied challenges because the Second Circuit previously held that Defendant’s vaccine mandate was neutral and generally applicable. For six of the Appellants, the Second Circuit affirmed the dismissal because the Defendant sufficiently pled undue hardship, and the Plaintiffs did not plead sufficient facts to counter Defendant’s claim. However, for two of the Plaintiffs, the Second Circuit vacated the dismissal and remanded their claims for further proceedings.

Plaintiff Solon did not receive a fresh review after Kane I because she chose to receive the vaccine despite her religious objections and was reinstated. Because her original request was evaluated under a flawed process, she could still plausibly claim a violation of her First Amendment rights as a result of being forced to violate her religious views to keep her job. Also, the City had failed to plead undue hardship with respect to Solon’s request for an accommodation. Thus, her claims could not be dismissed at this stage. 

Plaintiff Clark alleged that Defendant denied her accommodation request because her religious beliefs were “too idiosyncratic” to be religious. But this kind of evaluation, which involved the nature of the religious beliefs, not their sincerity, was the problem that Kane I addressed. At this stage, the question of whether Clark’s beliefs were religious was one of fact which could not be dismissed at this stage.

November 14: In Huber v. TIAA, the United States District Court for the Western District of Virginia granted Defendant TIAA Insurance Co, (“TIAA”)’s motion to dismiss. The Plaintiff employee, Caroline Huber, alleged that TIAA unlawfully denied her request for religious exemption to TIAA’s mandatory vaccination policy and then unlawfully terminated her employment when she did not follow the policy. Huber’s discrimination claims were as follows: failure to accommodate, wrongful termination, hostile work environment, and retaliation. The Court dismissed the Plaintiff’s failure to accommodate claim without prejudice because Plaintiff did not contend that her objections to the vaccination policy arose from “any belief that might be considered religious, whether conventional or not conventional.” The Court also dismissed Plaintiff’s wrongful termination claim without prejudice because Plaintiff did not offer any facts to show that TIAA treated Plaintiff differently because of her religion. In addition, the Court dismissed Plaintiff’s hostile work environment claim without prejudice because she did not show she experienced “severe or pervasive harassment” due to her religion. Lastly, the Court dismissed Plaintiff’s Title VII retaliation claim because she had not raised it in her claims before the Equal Employment Opportunity Commission, which was a prerequisite to bringing a case in court.  

November 15: In Beth McDowell et al v. Bayhealth Medical Center, Inc, the Third Circuit Court of Appeals affirmed the District Court’s dismissal of the Plaintiffs’ religious discrimination claims. Plaintiffs in this case contended that “taking the vaccine would violate scripture because they believe the vaccine is unsafe, toxic, or harmful.” The Court held that these beliefs are based on personal, secular, and medical beliefs about the efficacy and safety of the vaccine rather than religious beliefs. The Court explained its holding by writing “to allow such generalized objections would leave almost no limit to the accommodations that an employer would have to entertain under Title VII’s ban on religious discrimination.”

The Newsletter will take a break for the next week. We will be back in your inbox on December 6.