Inoculating Employers Against Religious Discrimination Claims – Sixth Circuit Gives University Victory over Employee’s Religious Challenge to COVID-19 Policy

It is cold and flu season, and COVID-19 remains an ongoing threat. Have you inoculated your workplace against claims of religious discrimination?

A recent Sixth Circuit decision, DeVore v. Univ. of Kentucky Bd. of Trustees, No. 23-5890, 2024 WL 4471281 (6th Cir. Oct. 11, 2024), addresses the University of Kentucky's test-or-vaccinate policy and provides some insights into how employers might avoid claims of religious discrimination when implementing general workplace policies, not just those related to infectious disease.

On October 11, a three-judge panel of the Sixth Circuit Court of Appeals affirmed summary judgment in favor of the University of Kentucky against a former employee's claims of religious discrimination due to the university's test-or-vaccinate policy. The court concluded that the employee's case lacked proof of a conflict between her religious beliefs and the university's policy.

Since the COVID-19 pandemic, employers have faced many challenges, often on religious grounds, when implementing policies to safeguard their employees' and third parties' health while protecting employee rights. In the Sixth Circuit case, a former department manager at the University of Kentucky claimed the university's policy intruded on her religious beliefs. The former manager claimed she was forced to retire from the university because its test-or-vaccinate policy discriminated against her based on her religion.

The university required its employees to return to the office for the 2021-2022 academic year. The university implemented a policy whereby its employees had to be vaccinated or undergo a weekly COVID-19 PCR test. In response, the employee made multiple requests for a religious exemption or accommodation that would allow her to forgo compliance with the policy. The university engaged in extended discussions with the employee about the policy. The employee's requests were denied, but the university offered her three ways to comply with its policy: She could get vaccinated, she could undergo nasal swab testing, or she could undergo saliva testing.

The employee, after being issued multiple warnings about noncompliance with the policy, subsequently retired and, in 2022, sued the university for religious discrimination under Title VII of the Civil Rights Act of 1964. The Plaintiff objected to the policy on the grounds that it was invasive, manipulative, and coercive.

The Plaintiff claimed the PCR tests were invasive, as they interfered with her religious obligation to treat her body as a "temple" and that repeated PCR testing could damage it. In her view, the policy was also manipulative because it indirectly encouraged her to get vaccinated. The Plaintiff also claimed that taking the vaccine was against her religion. Finally, she argued that the tests were inherently coercive, as the policy forced compliance or dismissal from work.

The court held that the Plaintiff's "prima facie case must therefore establish a religious conflict with each of the testing options the University offered." The court noted that the university offered oral swabs in lieu of PCR tests, a compromise that the Plaintiff admitted was not invasive. The court similarly found that the policy was not manipulative, as it gave an alternative to vaccination that the Plaintiff admitted was not invasive. The court further found that the policy forcing compliance did not establish a religious conflict, and that instead the Plaintiff only found the policy "unfair." Accordingly, the court concluded that the former employee failed to establish any religious conflict. The court also noted that the former employee "never identified in the record what her religion is."

Bottom Line: By providing multiple means to comply with an employer policy regarding vaccination requirements, management can minimize the risk of an employee successfully objecting to such a policy on religious discrimination grounds.