An excerpt from the lengthy opinion issued today in Lewis-Williams v. S.F. Bay Area Rapid Transit Dist., authored by Judge Ryan Nelson and joined by Judges Johnnie Rawlinson and Bridget Bade:
The San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict awarding $7,824,580 to six former employees for Title VII violations arising from the failure to accommodate their sincere religious objections to a COVID-19 vaccine mandate. Because there is enough evidence in the record to support the jury’s verdict, we affirm….
Title VII obliges employers to “reasonably accommodate” employees’ sincere religious objections to exemptions from neutral job requirements that clash with their religious beliefs, unless the employer can prove that the exemption would cause an “undue hardship.” That is a congressional choice dating back to 1972, and while there are compelling reasons to question mandating religious exemptions from neutral rules, Congress did enact such a mandate. Here, the court held that the jury was entitled to reject BART’s claim of undue hardship:
It is undisputed that the Six Former Employees carried the burden of establishing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The question, therefore, is whether BART carried its burden to show that these religious objections could not be accommodated without creating an undue hardship.
BART’s argument… unfolds in two stages. First, BART contends that unrebutted testimony established that (1) public health guidance at the relevant time indicated vaccination as the most effective means to curb the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unsafe and impractical for unvaccinated employees to perform in-person work, and (3) that reliance on such guidance should control the undue-hardship analysis because a religious accommodation that increases safety risks to others constitutes an undue hardship as a matter of law. Second, BART contends that remote work and unpaid leave—the only accommodations equating in safety to vaccination—were not reasonable accommodations as a matter of law because the trial record shows that the Plaintiffs could not perform the essential duties of their jobs remotely, and any unpaid leave would be effectively indefinite….
[W]e conclude that BART is not entitled to [set aside the verdict]. To prevail on its “undue hardship” defense, BART had to demonstrate that the alternatives to vaccination would be not merely less safe, but less safe by a margin that is “substantial,” “excessive,” or “unjustifiable.”
BART maintains that any rise in safety risk stemming from an accommodation constitutes an undue hardship. This position conflicts with the Supreme Court’s Groff ruling, which states that an accommodation imposes an “undue hardship” only if the burdens are “substantial,” “excessive,” or “unjustifiable.” Reason dictates that safety risks, like other types of risk, can sometimes be justified…. “Because very few activities in life are free of risk, we ask not whether a risk exists but whether it is meaningful.” Consequently, an employer does not escape the duty to prove an accommodation unreasonable merely by pointing to safety implications. Instead, employers ordinarily may rely on public-health authorities’ guidance, together with the best available objective, scientific information at the time, when deciding on accommodations.
That leads to the next problem with BART’s argument: the very public-health guidance BART leaned on is not present in the record. BART did not call any infectious-disease experts or public-health officials who advised its pandemic task force during vaccine-policy formulation. Instead, BART presented testimony from two post hoc litigation experts—Dr. Joseph Lewnard, an infectious-disease epidemiologist, and Dr. Nancy McClellan, an industrial hygienist—to establish the state of public-health guidance and the risks of allowing unvaccinated employees to work in person.
Contrary to BART’s assertions, the jury was not required to accept BART’s expert testimony as conclusive evidence of the scientific basis underlying BART’s decision-making. Moreover, “[e]xpert testimony… is not conclusive upon the trier of fact, even if unchallenged and undisputed, since the trier may apply his own experience or knowledge in determining how far to follow the expressed opinion.” Thus, the expert testimony did not prove that in-person alternatives to BART’s vaccine mandate—masking, social distancing, and similar measures—would be unreasonable accommodations as a matter of law….
That conclusion, though, is not necessarily fatal to BART’s position. Even if in-person alternatives to vaccination are not inherently unreasonable accommodations in BART’s line of business, they may still amount to an undue hardship depending on the nature of the business, the duties of the religious objector, or other factors (or a blend of factors).
Our decisions in Petersen and Williams illustrate the point. In Petersen, eight firefighters sued their employer for denying them religious accommodations to a COVID-19 vaccine mandate. Because the fire department’s mission was to deliver the public emergency, potentially life-saving services, and undisputed evidence showed that “firefighters work in group settings, constantly interacting with coworkers and the public, both indoors and outdoors” and that the plaintiffs often did not adhere to masking and social-distancing guidelines, we held that “testing, masking, and social distancing in lieu of vaccination” was not a reasonable accommodation given the substantial burdens on the fire department.
Defendants in Petersen also faced serious financial and operational risks likely to accompany accommodation for the firefighters (including the possibility of losing nearly a quarter of the firefighting force to illness and jeopardizing a $400,000 annual contract). {By contrast, BART had obtained millions of dollars in federal COVID-19 relief funds. The jury could reasonably infer that BART used those funds to avoid mass layoffs during the pandemic. The employees who lost their jobs were the religious dissidents BART did not accommodate. Thus, a reasonable jury could also have inferred that BART possessed the resources and an ample workforce to accommodate the Six Former Employees without incurring an undue hardship.}
In Williams, nine healthcare professionals filed suit against their employer, a regional health system operating eight hospitals in the Willamette Valley, on the same theory—failure to provide accommodations for a COVID-19 vaccine mandate. In ruling that alternative measures to vaccination would impose an “undue hardship” on the conduct of the defendant’s business, we noted that the defendant’s enterprise was the provision of safe and effective medical care to the public, that unvaccinated front-line hospital workers faced a unique risk of infection, and that the plaintiffs’ duties required close contact with patients or staff, thereby creating heightened risks of staffing challenges and undermining patient care.
Those considerations are not present in the current case. Unlike the defendants in Petersen and Williams, BART’s core business is transportation rather than health care, and unlike the plaintiffs in those matters, the Six Former Employees did not hold roles that mandated frequent, close contact with the public or with most coworkers:
- Tonya Lewis-Williams worked as a “utility worker,” tasked with clearing debris from platforms, trains, and some offices, among other duties. She testified that she was mostly alone and did not regularly interact with passengers or fellow staff.
- Bradford Mitchell served as a “rolling stock component maintenance superintendent,” overseeing the maintenance of train cars at the Richmond shop. He stated that he had no public contact and only minimal in-person contact with other BART workers—any required in-person meetings with shop staff occurred in a spacious, open bay area with high ceilings, and after the outbreak began, meetings happened only very rarely.
- Rosalind Parker held the role of “customer service clerk,” selling tickets, renting bike lockers, and handling company store items, among other duties. She worked beside four coworkers and communicated with the public through a bulletproof window. Her role did not require direct customer contact—payments and tickets were collected via a slot, and interactions occurred through a microphone. After the pandemic began, BART installed large polyglass partitions separating her workspace from the other clerks.
- Szu-Cheng Sun was a “computer electronic technician” responsible for installing, maintaining, and repairing computer equipment. Sun testified that ninety percent of his work could be done alone or remotely, that he had no interaction with customers or riders, and that he would only occasionally work alongside a coworker due to safety concerns.
- Raymond Lockett was an “operations supervisor liaison,” charged with meeting and guiding contractors around BART facilities (as well as BART workers who needed access to restricted areas) and ensuring these individuals did not create safety concerns. Lockett stated that his duties were mostly outdoors and generally kept at a safe distance from others.
- Ryan Rivera was a “storekeeper,” handling requisitions and inventory control, among other tasks. He testified that, in his role as a senior lead, he was relieved of all physical duties and could have worked solo in his secluded office, which boasted its own ventilation system with windows and filters.
Moreover, the record does not show any evidence suggesting that the Six Former Employees would have been unable or unwilling to wear a mask or to take other reasonable steps to prevent transmission. Accordingly, the jury reasonably could have found that the burdens of accommodating their religious objections would not be substantial, excessive, or unjustifiable.
We are particularly reluctant to disturb a jury verdict that rests on an undue-hardship assessment. The determination of undue hardship is a fact-specific inquiry that considers all relevant factors in the case at hand. Fact-bound determinations are typically best left for the jury to resolve. After all, the jury embodies the community’s conscience.
Given the nature of undue-hardship analysis, only in cases—such as Petersen and Williams—where the burden’s excessiveness is so evident that reasonable minds could not differ should the question be decided as a matter of law. This is not such a case. The jury reasonably resolved those factual disputes, resulting in a verdict in favor of the Six Former Employees….
Judge Ryan Nelson also filed a separate concurrence addressing the Free Exercise Clause in general terms; it is accessible here.
Gage S. Fender, Matthew McReynolds, and Kevin T. Snider (Pacific Justice Institute) together with Susan J. Clouthier and Gage S. Fender (Clouthier Law PLLC) acted as representatives for the plaintiffs.
