Jottings By An Employer's Lawyer

Friday, January 04, 2013

Veganism Protected As a Religion? Not So Fast

Writing from Austin, where almost every menu offers at least vegan alternatives, I hate to put a damper on what is surely going to be the quick take-away from a recent court decision refusing to dismiss the religious discrimination claim of a hospital employee fired for refusing to take a flu shot because as a Vegan the ingestion of a vaccine created from eggs would violate her ethical and religious beliefs.  Chenzira v. Cincinnati Children's Hospital Medical Center (S.D. Ohio 12/27/12). 

As an example of what I anticipate, at babycenter, there's this headline: Exciting News! Veganism qualifies for religious exemption (at least in Ohio)!! Well, we will see.

Before getting too excited, it is important to note that this ruling was based on a Motion to Dismiss on the pleadings, so the standard for survival was quite low: "The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim." A question the Court answered this way:
it is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.
Still, this highlights an area where courts would really not like to go. I still go back to the Cloutier v. Costco decision from the 1st Circuit, as an example of just how courts view the murky waters of discerning what will meet the standard for protection under Title VII's protection against religious discrimination.  See A Piercing Problem - 1st Cir. Ducks the Real Question.  There the Court wrote:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Even assuming, arguendo, that Cloutier established her prima facie case, the facts here do not support a finding of impermissible religious discrimination.

The opportunities for raising a claim of "veganism discrimination" are probably limited, but the opportunities for individuals to claim religious discrimination under the EEOC definition are not. 29 CFR ยง1605.1 provides that:
... the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views. ... The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.
The termination of a hospital employee for refusing to take a flu shot is a fascinating area in and of itself. I learned that, when I handled such a case a year ago. It is a classic example where an employer is put in a bind between what is required to comply with a mandate and the impact on its employees.

In order to comply with Joint Commission regulations, many hospitals feel pressured to have mandatory flu shot requirements. A position that seems to be well supported by findings of health organizations. On the other hand, forcing someone to take a vaccine, or have some unpopular accommodation, such as wearing a mask for the entirety of the flu season, is certainly likely to ire a certain set of employees.

Often the law is left to sort it out, and unfortunately the mechanism for doing so is most often a claim of discrimination of some sort with the employer in the middle, paying for it, regardless of how it is ultimately decided.

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