Case updates this week:

September 25: In Greene v. Northwell Health, Inc. et al, the United States District Court for the Eastern District of New York granted Defendants’ Motion to Dismiss in its entirety. The Court dismissed Plaintiff’s request for declaratory relief because she had only alleged past injury. Declaratory relief is only available to prevent ongoing future harm. Additionally, the Court found that the Plaintiff abandoned her religious discrimination and hostile work environment claims by not addressing them in her brief on the motion to dismiss. But even if the Plaintiff had not abandoned her claims, her complaint failed to state a claim because the Plaintiff did not allege any facts to counter Defendant’s allegations that being unvaccinated made Plaintiff unqualified for the position, and that it would cause undue hardship to accommodate her request to avoid vaccination.

September 25: In Moore v. Health Care and Rehabilitation Services of Southeastern Vermont, Inc., the United States District Court for the District of New Hampshire granted Defendant’s motion to dismiss Plaintiff’s claims for harassment and hostile work environment, retaliation, and wrongful discharge. However, the Court found that Plaintiff’s failure to accommodate claim under Title VII was sufficient to survive a motion to dismiss because she adequately alleged that her religious beliefs prevented her from complying with the Defendant’s vaccine requirement.

September 26: The United States District Court Southern District of Ohio granted in part and denied in part Defendant, Nationwide Children’s Hospital’s, motion to dismiss in Steele v. Nationwide Children Hospital. Plaintiff alleged that Defendant discriminated against her both because of her age and for her request for a religious exemption from the Defendant’s COVID-19 vaccine policy. The Court dismissed Plaintiff’s age discrimination claims under both federal and state law (Counts IV and V). However, the Court found that Plaintiff established a prima facie case as to the Defendant’s failure to accommodate her religious beliefs because she did not have to allege specific facts at the pleadings stage. In addition, the Court found that “Plaintiff has met her burden and plausibly alleged a religious discrimination retaliation claim” and denied Defendant’s motion on those claims.

September 26: In Culver et al. v. Factory Mutual Insurance Company, the United States District Court for the Eastern District of Texas granted Defendant’s motion to dismiss without prejudice as to each of several Plaintiffs’ hostile work environment claims. The Court also granted the motion to dismiss with respect to Plaintiff Tyler Smith’s claims for disparate treatment, failure to accommodate, retaliation, and disparate impact. Plaintiff Tyler Smith failed to show a conflict between his religious beliefs and Factory Mutual Insurance Company’s vaccine mandate. But the Court permitted him to file an amended complaint to show with “great detail” how the COVID-19 vaccine violates the core virtues of his religious belief, Stoicism.

Health Equity Challenges

This summer Public Health Law Watch began tracking litigation that challenged programs and policies intended to promote health equity. It is our goal to track these challenges at the earliest possible stage of litigation to analyze and share information on litigation trends as they occur. Finding these cases is not a simple task because they do not slot into predictable, searchable categories. Our initial strategy was to take the names of the handful of impact litigation organizations that we knew are bringing challenges of this kind and search for their names in case databases like Westlaw and Lexis, where we can find judicial decisions in the cases they have brought. But we also searched databases that contain court docket information, where we can find the initial complaints that lay out the nature of the challenge and the arguments the challengers intend to assert long before a court issues opinions that become available through case databases. We can also track outcomes like settlement or voluntary dismissal, which can provide important information.

To illustrate. an organization called Do No Harm, whose stated mission is to fight “identity politics” and “anti-racism” in the healthcare context. Do No Harm has filed several lawsuits across the country that challenge programs aimed at improving health equity. They rely on a Civil Rights statute that Congress first enacted in 1866 which states:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . .” (emphasis added) 42 U.S.C. §1981(a).

By its language, §1981 recognizes racial inequality and seeks to remedy it. Yet, Do No Harm relies on this law to challenge programs that seek to reduce the inequity of opportunity that exists for non-white candidates who want to enter the healthcare profession. Although the law at issue in the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College was not 42 U.S.C. §1981, Do No Harm alleges at the top of its complaint in Do No Harm v. National Association of Emergency Medical Technicians, “’Racial discrimination is invidious in all contexts.’ SFFA v. Harvard . . . Healthcare especially." SFFA clearly inspired Do No Harm’s litigation campaign, something that PHLW’s Wendy Parmet predicted it would.

We started tracking six cases brought by Do No Harm that challenge healthcare scholarships and fellowship programs. Of the six, we learned from court dockets that four cases settled shortly after Do Not Harm sued on terms that require the Defendants to agree to remove any application requirements based on race, which means removing any anti-racist purpose. One case is ongoing with a motion to dismiss pending. In the 6th case the Second Circuit upheld the Southern District of New York’s decision to grant the motion to dismiss brought by Defendant, Pfizer in Do No Harm v. Pfizer Inc. The Second Circuit determined that Do No Harm lacked standing to sue on behalf of its members because it had failed to identify any specific member who had suffered injury. However, the dismissal was without prejudice. Thus far, Do No Harm has not refiled its case against Pfizer.

The question of how specifically an association must plead facts showing injury to specific members before it has standing to sue on behalf of all members is currently in dispute among the Circuit Courts. An association can have standing to sue, if it can show at least one of its members would have standing to sue on their own behalf. The Second Circuit required identifying information for at least one specific individual. Other Circuits allow associations to maintain lawsuits with far less specific allegations of actual injury to actual members. This lower standard would allow associations to sue on ideological grounds rather than actual injury.

Our database is growing, but we could use your help. If you come across cases that we should be tracking, please let us know using this form.

The Newsletter will take a break for the next week. We will be back in your inbox on 10/18.