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C.A. Resurrects Firefighter’s Lawsuit Over Religious Objections to Vaccine Mandate
Opinion Says Complaint Alleges Valid Claims That City Failed to Accommodate Plaintiffs’ Concerns With COVID-19 Shot by Placing Them on Unpaid Leave
By a MetNews Staff Writer
The Sixth District Court of Appeal has revived a religious discrimination complaint filed by San Jose firefighters who allege that the city failed to reasonably accommodate their religious objections to the COVID-19 immunization, finding that the placement of the unvaccinated first responders on involuntary, unpaid leave after the county issued a vaccine mandate for “higher risk” workers was an adverse employment action.
At issue are provisions in Title VII of the federal Civil Rights Act and California’s Fair Employment and Housing Act (“FEHA”) which prohibit an employer from discriminating against an employee because of that individual’s religion. Under both pieces of legislation, a claim for religious discrimination may be asserted for failing to reasonably accommodate an employee’s religious beliefs and practices.
Plaintiffs Christopher Bingham, Anthony Dixon, Aleksandr Girzhu, Luke Goodrich, and Brendan Kasten are firefighters for the City of San Jose who sought religious exemptions in August and September 2021 from the municipality’s vaccination requirements based on their objection to the use of fetal cells in the inoculations and to being forced to inject their bodies—as “temple[s] of the Holy Spirit”—with something potentially harmful.
San Jose granted the exemptions. In December 2021, however, Santa Clara County issued a public health order requiring firefighters and other personnel working in “higher-risk settings” to be fully vaccinated against COVID-19 and expressly forbidding employers from offering accommodations to allow unvaccinated employees covered by the order to continue to work.
Ultimatum Issued
After the county health order went into effect, the city notified the plaintiffs that they would not be permitted to continue working unless they complied with the mandate and would be placed on unpaid leave as accommodation for their religious beliefs. They were each placed on leave for five weeks in early 2022 before the county amended the order.
On May 27, 2022, the plaintiffs filed a complaint against the city, asserting claims under Title VII and FEHA, alleging that they suffered financial harm from the leave, lost accrual time toward their pensions, and demotions in seniority.
They contend that the city could have easily accommodated them by allowing them to work on 911 calls and that their coworkers could have been adequately protected through masking and testing.
Santa Clara Superior Court Judge Frederick S. Chung sustained a demurrer filed by the city on Aug. 8, 2023, without leave to amend, saying the plaintiffs were “effectively, voluntarily disabled” by their choice to remain unvaccinated and that “there was no other accommodation available to them than a leave of absence.” Judgment was entered in favor of the defendants 10 days later.
Justice Daniel H. Bromberg wrote the unpublished opinion, filed Wednesday, reversing the judgment. Acting Presiding Justice Cynthia C. Lie and Justice Charles E. Wilson joined in the opinion.
Prima Facia Case
Bromberg pointed out that “Title VII failure-to-accommodate claims are analyzed ‘under a burden-shifting framework’” under which the employee must first establish a prima facie case of failure to accommodate religious beliefs before the employer is required to show that it initiated good faith efforts to adjust the working conditions.
He noted:
“To plead a prima facie case of failure to accommodate under Title VII, an employee must allege three things: ‘(1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer…subjected him to an adverse employment action because of his inability to fulfill the job requirement.’….For purposes of this appeal, the City does not dispute that the first two parts of this test have been satisfied. We therefore focus on the third part of the test.”
Turning to the allegations in the complaint, he said:
“Plaintiffs alleged that the City took adverse employment actions against them because of their inability to fulfill a job requirement. In particular, because the County vaccination order mandated that individuals working in Higher-Risk Settings be vaccinated, the City allegedly prohibited plaintiffs from working as firefighters…and placed them on unpaid leave for five weeks. In addition to depriving plaintiffs of their livelihood, this unpaid leave allegedly harmed plaintiffs because they ‘had to use all paid vacation time and were forced to use lost time, which means they did not accrue time towards their pensions and suffered a loss of seniority,’ which in turn caused them to lose their ‘place in line to choose, e.g., vacation time and places to work.’ ”
Unpersuaded by the city’s argument that the finite nature of the leave undermined any argument that the plaintiffs suffered an adverse employment action, he remarked that “the City has failed to offer any persuasive reason why involuntary unpaid leave exceeding a month should not be considered an adverse employment action, much less to cite any authority taking such a position.”
Under these circumstances, Bromberg wrote that “we conclude that the amended complaint sufficiently pleaded a prima facie case under Title VII for failure to accommodate.”
Unreasonable Accommodation
The jurist said that “Title VII requires employers ‘to accommodate the religious beliefs of an employee in a manner which will reasonably preserve the employee’s employment status.’ ” He continued:
“By not requiring plaintiffs to take the COVID-19 vaccines mandated by the County vaccination order, the City eliminated the conflict between the order and plaintiffs’ religious beliefs concerning the COVID-19 vaccines. However, the alleged unpaid leave did not reasonably preserve plaintiffs’ employment status….To the contrary, the City allegedly barred plaintiffs from the workplace and placed them on unpaid leave, depriving them of both their work and their pay. In essence, plaintiffs have alleged that the City laid them off for the duration of the County vaccination order. As the alleged involuntary unpaid leave fundamentally changed plaintiffs’ employment status, we conclude that plaintiffs have adequately alleged that the involuntary leave was not a reasonable accommodation.”
Distinguishing case law establishing that unpaid leave is generally a reasonable accommodation for things like unrecognized religious holidays, Bromberg opined:
“This case is far different. The unpaid leave alleged by plaintiffs was involuntary and extended. It allegedly barred plaintiffs from their workplace when they want to work, and it allegedly deprived them of pay (as well as pension and seniority rights) for weeks, not just days….
“Because the…complaint plausibly alleged the extended and involuntary unpaid leave imposed on plaintiffs did not reasonably preserve their employment status, we conclude that, for purposes of the pleadings, the leave was not a reasonable accommodation.”
Explaining that failure to accommodate claims are interpreted “similarly, if not identically” under Title VII and FEHA, he further declared that “we conclude that the amended complaint alleges a valid failure-to accommodate claim under FEHA.”
The case is Bingham v. City of San Jose, H051386.
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