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 that
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 healthcare
worker, but instead 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,
for 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 that the hospital could argue that
because of the infectious nature of the flu, a non-healthcare 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 have
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 that they do offer
some level of protection. As such, the
case also will place before the federal court the issue of whether a healthcare
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,
as previously noted in The Employee with the Dragon Tattoo, 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 has 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.
