Cases & Developments

Opinion reversing denial of preliminary injunction. Plaintiffs, current and former employees and students at the University of Colorado Anschutz Medical Campus whose religious exemptions from the University’s COVID-19 vaccination policy were denied in-part, brought a Free Exercise challenge. The initial policy limited religious exemptions to those opposing “all” immunizations but was revised within three weeks to accord any religious belief. The district court denied two preliminary injunctions, finding the first challenge to the repealed policy moot, and the second unlikely to succeed on the merits. In denying the latter, the court found that under the amended policy (1) different personnel reviewed exemptions, (2) religious beliefs were accepted unquestioningly as sincere, and (3) individualized duties-focused review yielded remote or isolated on-campus work exemptions for multiple plaintiffs, while undue hardship was sustained for students and employees with patient-care duties. On consolidated appeal, a divided Tenth Circuit panel reversed in favor of employee plaintiffs after making novel appellate factual findings and applying strict scrutiny to the rescinded policy. It found that since officials asked “why” rather than “whether” plaintiffs sought religious exemption under the first policy that neither policy was “considered with the neutrality that the Free Exercise Clause requires” (citing Masterpiece Cakeshop v. Colorado) and bare violation of Free Exercise can demonstrate animus even absent actual hostility. The Circuit also found while not an express basis of appeal, plaintiffs were likely to succeed in showing that the initial policy impermissibly involved the University in evaluating religious doctrine under the Establishment Clause. Finally, it found the first appeal of the original policy, and all student claims under both policies moot.  

Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiff, a former nursing student at the Oregon Health and Science University who worked in clinical rotations in Summer 2021, brought a discrimination claim under Title VII against the University after it denied her request for a religious exemption to the University’s COVID-19 vaccine mandate. In granting the University’s motion to dismiss, the court found that plaintiff failed to allege sufficient facts that she was employee to whom the protections of Title VII are applicable since she neither received a substantial benefit from her alleged “employment” as a nursing student nor had otherwise established agency under the common law test, though it found these pleading defects could be cured and granted plaintiff leave to amend. Turning to her request for a religious exemption, the court found that plaintiff’s assertions that her “faith and trust that God knows the direction that my journey is supposed to take” and that she “cannot receive vaccines as they unnaturally interrupt my journey in this natural world as set up by God” were sufficient to state a bona fide religious belief conflicting with an employment duty, insofar as she might establish an employment relationship through an amended pleading.   

Opinion & Order granting Defendant’s Motion for Summary Judgment.  Plaintiff, a former employee at the University of Kentucky, brought a religious discrimination claim against the University after she was terminated for noncompliance with the University’s policy that employees either receive a COVID vaccine or submit to regular testing.  Plaintiff asserted that the University’s policy aimed to “manipulate [her] into taking the ‘vaccine’” and violated her “God-given rights to be able to choose what shall or shall not happen to [her] person.”  In granting summary judgment in favor of the University, the court held that plaintiff failed to “show that she holds a religious belief that conflicts with an employment requirement,” finding instead that she had asserted “an isolated moral teaching” and that “granting [her] request would amount to a blanket privilege and a limitless exclude for avoiding all unwanted obligations.”  The court further held that plaintiff’s proposed accommodation that the University permit her to work remotely or hire an additional employee would have created an undue hardship, noting (1) that because plaintiff was her department’s only administrative employee, her physical presence was necessary to performing the essential function of welcoming students and visitors, and (2) that the expense of a second salary for duplicate work was unreasonable, noting that plaintiff’s position was not filled after her departure and that the department was subsequently eliminated.