Case updates this week:

October 2: In Mohamed v. Full Life Care et al., the United States District Court for the Western District of Washington granted the Defendants’ Motion for Summary Judgment. The Plaintiff employee alleged both that Defendants failed to accommodate her request for a religious exemption to their COVID-19 vaccine requirement, and that the Defendants retaliated against her (by terminating her) for making the request. The Court found that Defendants provided unrebutted evidence that accommodating Plaintiff’s religious exemption granting Plaintiff’s accommodation request would cause Defendants undue hardship because there were no material facts in dispute that contradicted Defendants’ claim of undue hardship. Thus, Defendants were entitled to summary judgment.

October 9: In Montana Medical Association et al. v. Knudsen, a panel of the United States Court of Appeals for the Ninth Circuit reversed the District Court’s decision, which granted summary judgment to the Plaintiffs and imposed a permanent injunction prohibiting the state of Montana from enforcing House Bill 702 (“HB 702”). HB 702 forbids discrimination based on vaccination status. The District Court concluded that the Americans with Disabilities Act (“ADA”) and the Occupational Health and Safety Act (“OSH Act”) impliedly preempted HB 702. The District Court also found that the statute violated the Fourteenth Amendment’s Equal Protection clause. 

HB 702 changed the Montana Human Rights Act to forbid discrimination due to vaccination or immunity status. The Plaintiffs’ main contention was that HB 702 increased the risk of infection that unvaccinated healthcare workers posed to coworkers and patients, specifically those who were immunocompromised, because the statute prevented employers of Montana Healthcare providers from knowing their healthcare employees’ vaccination status. 

The Ninth Circuit noted that the Plaintiffs did not claim that either the ADA or the OSH Act expressly preempted HB 702. Rather, HB 702 conflicted with the two federal statutes. In the federal/state preemption context, conflict exists either when “it is impossible for a private party to comply with both state and federal requirements” or when a state law “undermines the intended purpose and natural effect of the federal law.” To determine if the state law “undermines” the federal law, the Ninth Circuit was required to observe “the federal statute as a whole and [identify] its purpose and intended effects.” In mounting a facial challenge to HB 702 in all healthcare settings, the Plaintiffs had to meet the high bar of establishing that “’no set of circumstances exist under which [HB 702] would be valid’ in health care settings.”

Plaintiffs claimed that to provide accommodations to immunocompromised under the ADA or to ensure a workplace free of hazards under the OSH Act employers need to know their employees’ vaccination status.

With respect to the ADA, the Ninth Circuit determined that the Plaintiffs had not “demonstrated that HB 702 created a genuine conflict with the ADA in any specific case, much less that HB 702 is facially invalid in all healthcare settings.” Reasonable accommodations require consideration of the specific circumstances and context to determine what will accommodate the needs of someone covered under the ADA without causing undue hardship to the employer. The Ninth Circuit was unpersuaded that complying with the ADA required employers in all cases either to know the vaccine status of their employees or to discriminate against their employees because of their vaccine status, which was sufficient to defeat a facial challenge to HB 702. The Ninth Circuit also noted that the record showed that some of the Plaintiff healthcare institutions did not require employees to be vaccinated and did not have pre-HB 702 policies that permitted employers to know their employees’ vaccination statuses, which indicated that it was possible to comply with the ADA without requiring vaccination or knowledge of vaccine status.

With respect to the OSH Act, the Ninth Circuit determined that here was no OSH Act standard that governed the vaccinations that HB 702 is concerned with. The only standard that had a rule requiring COVID-19 vaccination mandates for most employers with at least 100 employees was overturned by the Supreme Court on the grounds that the OSH Act did not provide the OSH Administration the authority to implement the rule.

The Ninth Circuit draws the same conclusion with respect to the OSH Act as it did for the ADA, that is that the claimed conflict with HB 702 is “hypothetical or potential.” The Ninth Circuit clarified that it did not foreclose future as-applied challenges under the ADA or the OSH Act. The Ninth Circuit also determined that HB 702 easily satisfied rational review under Equal Protection analysis. Montana could have had several reasons for treating different kinds of healthcare facilities differently under HB 702. The reasons could be based on “rational speculation unsupported by evidence or empirical data.” In any event, Montana was not required to articulate its reasons. Instead, Plaintiffs were required to negate the rationality of every justification for the classification.

Health Equity Litigation

October 7: The Supreme Court granted certiorori review in Ames v. Ohio Dept. Of Youth Services on the question whether, under Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

This case found its way to the Supreme Court via the U.S. District Court for the Southern District of Ohio. Plaintiff, Ames, brought suit against her employer, the Ohio Department of Youth Services, alleging (among other things) that Defendant had discriminated against her because of her sex, and because of her sexual orientation.

The District Court granted summary judgment, and the Plaintiff appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit noted that the Plaintiff “sought to prove her discrimination claims by indirect evidence” which required her to show: “(1) that she was a member of a protected class; (2) that she was subject to an adverse employment decision; (3) that she was qualified for the relevant position; (4) and that her employer treated more favorably a similarly qualified person who was not a member of the same protected class.”

With respect to the sex discrimination case, Defendant conceded that the Plaintiff met her prima facie burden to sex discrimination by showing that the job she wanted was given to a man. Sex is a protected class. In keeping with the Sixth Circuit’s “majority/minority” framing, as a woman Plaintiff was a “minority” member of a protected class who was passed over for a promotion in favor of a man, a “majority” member of the same protected class. However, Plaintiff still had to prove that the reason she was passed over (and demoted) was because of discrimination and not some other legitimate reason.

The elements of Plaintiff’s sexual orientation discrimination claim were the same as her sex discrimination claim. However, the Sixth Circuit noted that as a heterosexual Plaintiff was a “majority” member of the protected class alleging discrimination by “minority” members of the class, she had to provide “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” “Majority” members of protected classes are typically the beneficiaries of discrimination, not the victims. Thus, it makes sense to require a “majority” plaintiff to explain how the adverse employment decision they experienced arose out of atypical circumstances, i.e., discrimination against a “majority” member of a protected class.

The background circumstances the Plaintiff had to show to keep her case alive could be either that a member of the “minority” group made the adverse employment decision or a pattern of discrimination, usually proven with statistical evidence. The Sixth Circuit held that the Plaintiff had offered neither and disposed of the sexual orientation discrimination claim on that basis.



As to the sex discrimination claim, the Sixth Circuit examined the undisputed facts in a light most favorable to the Plaintiff and found that she had not produced facts in dispute that would permit a jury to find that the Defendant’s stated reasons for her being passed over for promotion and later demoted were pretextual. Plaintiff had received mediocre performance reviews at best, and the position she sought required excellence, and the candidate who received the appointment was not less qualified than the Plaintiff. Because Plaintiff had not raised any factual disputes that needed to be decided at trial and because the undisputed facts would not support a jury finding of sex discrimination, The Sixth Circuit affirmed the District Court’s decision to grant Defendant summary judgment on the sex discrimination claim.

Plaintiff petitioned the Supreme Court for certiorori review, which the Court granted without explanation on October 7. The only question before the Supreme Court is the added burden a “majority” protected class member must bear in explaining how they have been discriminated against. It is of concern that the Supreme Court has agreed to hear this issue for two reasons. First, as stated above, it makes sense to request a bit more information when a typically favored member of a protected class claims to have been disfavored. If this extra “burden” is eliminated, it will invite any disappointed job candidate to sue for discrimination unless the successful candidate has the same protected class membership profile as they have. The second reason is that there is no real controversy here. The Plaintiff was unable to show that she was passed over and demoted for any reason other than her own “lackluster” performance and lack of qualifications. These facts require summary judgment in favor of the Defendant on the sexual orientation discrimination claim for the same reasons the facts required summary judgment on the sex discrimination claim. It would not have mattered if the Plaintiff had offered the extra “background circumstances” to meet her initial burden to get through the courthouse doors. She failed on the ultimate burden to prove her case. There is no case or controversy left for the Supreme Court to decide.