The Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Massachusetts hospital, alleging it discriminated against an employee on the basis of religion when it fired her for not complying with a facemask requirement after she declined a flu shot for religious reasons. EEOC v. Baystate Med. Ctr., Inc. raises unique issues of what constitutes a reasonable accommodation to religious practices under Title VII of the Civil Rights Act of 1964 (“Title VII”), as well as the scope of what is an undue hardship for employers, especially in the context of a health care provider.
In the federal lawsuit filed on June 2, 2016, the EEOC alleges that Baystate Medical Center fired administrative employee Stephanie Clarke after she sought a religious accommodation from the hospital’s mandatory employee immunization policy. The hospital had an accommodation policy for employees who refused flu shots for religious reasons, which required such employees to wear a surgical facemask while at work. The hospital suspended Clark without pay after she failed to wear the mask consistently, complaining she was not able to adequately communicate as part of her job while wearing the mask, which covered her nose and mouth. She was told she could not return to work until she either received an immunization or wore the mask at all times. When Clark declined either option on the basis of a religious objection, the hospital treated her response as a job resignation.
Title VII prohibits employment discrimination based on religion and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer. For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.
What raises the not-so-clear issues in this lawsuit is that Clark was not a health care worker, but instead was an administrative talent acquisition consultant, who, while she worked at the hospital, had no direct contact with patients. In public statements, the hospital has asserted that its policy of requiring employee immunizations or alternatively, requiring objecting employee to wear a facemask, is a reasonable measure to ensure patient safety. While it is anticipated the EEOC will argue that Clark’s lack of patient contact renders the hospital’s actions unreasonable, it is as likely the hospital could argue that because of the infectious nature of the flu, a non- health care worker present in the hospital could infect other employees who ultimately would have contact with patients, including those with weakened immune systems.
An issue that also is likely to arise is whether wearing a facemask is actually an effective reasonable accommodation for purposes of patient safety. The federal Centers for Disease Control and Prevention has noted that it is unclear how well masks work to prevent transmission of the flu or to what extent masks actually block or filter viruses from the air. However, some experts note they do offer some level of protection. As such, the case also will place before the federal court the issue of whether a health care facility should be given deference in determining policies for patient safety, and whether having to modify such policies constitutes an undue hardship under Title VII.
Whether Clark’s objection to flu shots is a sincerely held religious practice is unlikely to become an issue in the case. Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. In the EEOC lawsuit, it infers that Clark’s objection is based on her personal interpretation of the Bible.
However, despite such judicial deference, on occasion a court will find that an employee’s claimed religious practice simply does not pass the smell test. In Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.), the California Court of Appeals held that a prison guard’s self-created church of “Sun Worshiping Atheism” was not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours.
Whether the lawsuit results in some type of consent decree or settlement between the EEOC and the hospital, is summarily ruled on by the federal court or ultimately is ruled on by a jury, the decision could change the landscape of religious reasonable accommodation in health care and other industries. Whatever the result, it highlights the minefields employers can encounter in religious discrimination cases under Title VII.
Phelps Dunbar will follow the progress of the case and update readers on the final disposition of the case.