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Religion and the Law

No Preliminary Injunction for Health Care Workers Seeking Religious Exemption from Vaccine Mandate

The defendant hospital might be violating Title VII by denying the exemption (especially since it "changed its policy in an arguably arbitrary manner")—but the employees' remedy would be to sue for damages from being fired, and not to get a preliminary injunction ordering that they not be fired.


From Doe 1 v. Northshore Univ. Healthsystem, decided yesterday by Judge John F. Kness (N.D. Ill.):

A group of hospital workers face termination for their refusal, on religious grounds, to be vaccinated against the COVID-19 disease…. Plaintiffs registered religious objections to receiving any of the available COVID-19 vaccines because, Plaintiffs say, the vaccines were developed using cell lines derived from aborted fetuses. Plaintiffs offered NorthShore an alternative: in lieu of becoming vaccinated, Plaintiffs would instead submit to full-time masking and weekly COVID-19 testing. But NorthShore insisted that Plaintiffs either get vaccinated or find work elsewhere.

Plaintiffs now seek a judicial order preventing NorthShore from firing them based on their unvaccinated status. According to Plaintiffs, NorthShore's policy violates … Title VII of the Civil Rights Act of 1964 ….

[A]lthough Plaintiffs have demonstrated some likelihood of success on the merits of their Title VII claim—employers are required to make reasonable accommodations of religious practices and views—Plaintiffs cannot meet the additional prerequisites for preliminary injunctive relief of showing irreparable harm. Put another way, if Plaintiffs succeed at trial, their damages can be fully compensated through the traditional legal remedy of a damages award. Because that remedy is available, the Court cannot lawfully enter a preliminary injunction….

To make out a prima facie case of religious discrimination under Title VII "based on an employer's failure to provide reasonable accommodation, a plaintiff 'must show that the observance or practice conflicting with an employment requirement is religious in nature, that she called the religious observance or practice to her employer's attention, and that the religious observance or practice was the basis for her discharge or other discriminatory treatment.'" … Title VII's reasonable-accommodation requirement is meant "to assure the individual additional opportunity to observe religious practices, but it [does] not impose a duty on the employer to accommodate at all costs." …

[T]he defendant's burden of proof to justify an adverse employment action (rather than to provide an accommodation) requires that the defendant "show, as a matter of law, that any and all accommodations would have imposed an undue hardship." As the Supreme Court has explained, an undue hardship exists when an accommodation imposes more than a de minimis burden on an employer.

Assessing the undue-hardship question on the merits typically requires factual development, because whether an employer can "reasonably accommodate a person's religious beliefs without undue hardship 'is basically a question of fact.'" …

At this preliminary stage, it is by no means settled that NorthShore has done all it can to reasonably accommodate Plaintiffs. This finding flows in part from NorthShore's own conduct during this affair: initially, NorthShore told its employees that it could and would accommodate those with religious exemptions. NorthShore allowed each of the Plaintiffs to perform their roles with masking and testing throughout much of the ongoing public health emergency. Even accounting for the widespread availability of vaccines for hospital workers beginning in early 2021, almost a full year passed during which NorthShore apparently considered masking and testing to be sufficient to keep its patients, visitors, and employees safe.

Plaintiffs contend that they seek to continue to comply with "all reasonable requirements that work as alternatives everywhere else, including masking, PPE, regular testing, self-monitoring, self-reporting, and all other reasonable safety protocols." Even as late as September 2021, NorthShore was prepared to accommodate its religiously-exempt employees by allowing them indefinitely to undergo routine testing.

NorthShore has presented little justification for its abrupt policy change. Patients, visitors, and even employees of other hospital groups that provide medical or religious accommodations to their employees will still be permitted to enter NorthShore facilities, just as they were before the policy change. Indeed, under the new policy, a Plaintiff who is fired for being unvaccinated would nonetheless be permitted to visit a NorthShore patient even if that Plaintiff remained unvaccinated. And although NorthShore purports to rely on a new workplace rule from OSHA as a justification for its new policy, that rule allows the option of masking and testing.

Whether NorthShore will ultimately succeed in meeting the de minimis burden test … is uncertain. At this stage of the case at least, where no discovery has occurred and where complex and significant factual issues have been presented under a tightly compressed timeframe, the Court cannot usurp the factfinder's role and definitively say that NorthShore will fail in showing that Plaintiffs' requested accommodations presents an undue hardship.

But by the same token, it cannot be said that Plaintiffs have no reasonable chance of success on the merits. Especially in the light of the present record—where NorthShore changed its policy in an arguably arbitrary manner, other NorthShore employees who sought an exemption on nonreligious grounds were (at least initially) treated differently, and other hospitals comparable to NorthShore have not categorically foreclosed any accommodation short of vaccination—a factfinder could determine that the accommodations Plaintiffs seek are not undue burdens. Plaintiffs have thus established some likelihood of success on the merits….

[Yet p]reliminary injunctive relief is uncommon in the context of employment discrimination actions under Title VII …. This is because, in the ordinary case, money damages are available as compensation for the loss of income and other employment-related harms….

This opinion joins recent rulings from other courts facing similar arguments that strongly suggest Plaintiffs cannot demonstrate irreparable harm…. {[I]t bears emphasis that neither the defendant in Sambrano nor NorthShore are government actors; accordingly, the First Amendment is not implicated.} …

Loss of employment "is not irreparable because it is fully compensable by monetary damages." Indeed, "permanent loss of employment, standing alone, does not equate to irreparable harm." Because Plaintiffs complain about harms that are compensable through money damages, the Court cannot lawfully find that Plaintiffs face irreparable harm.

In making this finding, the Court is mindful of the dilemma Plaintiffs face. It is undeniable that any recovery of damages by Plaintiffs—even an across-the-board victory—is months or perhaps even years away. During that interval, Plaintiffs will still need to provide food, shelter, and myriad other necessities for themselves and, often, their dependents. The contingent hope of a future recovery does nothing to meet present needs, and that uncertainty may indeed cause some Plaintiffs to choose to get vaccinated despite their religious views.

But in that sense, Plaintiffs are situated no differently than other Title VII plaintiffs who may face the same choice—who may feel compelled to tolerate invidious discrimination at work based on personal needs, and yet for whom precedent establishes that money damages are a sufficient remedy.

UPDATE: For more on this issue, though in the context of the First Amendment and governmental mandates, see Josh Blackman's post on Doe v. Mills.