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Employee denied a vaccination exemption can’t sue religiously affiliated hospital

By Lisa Milam, J.D.

The fact that the hospital’s formal nondiscrimination policy stated that it does not discriminate based on religious affiliation did not waive its Title VII exemption.

A religiously affiliated hospital did not have to defend religious discrimination claims brought by a physical therapist who was fired for refusing, for religious reasons, to get a flu vaccine, a federal court in Arkansas held. The hospital fell within Title VII’s religious exemption, and the fact that the employer had its own formal policy committing to nondiscrimination on religious grounds, or other basis—a policy that exceeded the protections afforded employees under Title VII—did not mean that the hospital waived its Title VII exemption. The court granted the hospital’s motion for judgment on the pleadings (Jenkins v. Mercy Hospital Rogers, March 17, 2020, Holmes, III, P.K.).

Mercy Hospital’s influenza vaccination policy requires all employees to receive a flu vaccine each year, but provides that Mercy will grant exemptions for “approved medical reasons or sincerely held religious beliefs.” To obtain an exemption, an employee must submit an exemption request form and have her sincerely held religious belief certified by her religious leader, or someone else who can attest that the beliefs are sincerely held. However, the policy does not explain what standards the hospital will use to evaluate a religious exemption request.

The plaintiff was a member of the Believers Fellowship congregation, and she sincerely believed that requirements from the Christian Old Testament (the complaint cites the books of Leviticus and Deuteronomy) prohibits her from being vaccinated. She submitted a religious exemption request, which the hospital rejected without explanation. She then appealed the decision and her request was rejected once again without comment. After she refused a vaccination, she was terminated; her supervisor allegedly told her: “The official religion that follows the Old Testament gets the flu shot, and the official religion that follows the New Testament also gets the flu shot.” She filed suit alleging religious discrimination under Title VII (as well as state-law claims, not pertinent here).

As the court observed, the only inference to be drawn from these facts, if true, is that the hospital discriminated against the employee on the basis of her religion by refusing her request for a religious exemption from the vaccination requirement and then firing her for not being vaccinated. However, Title VII’s exemption for religiously affiliated employers meant the employer could not be liable for such discrimination.

In this case, though, Mercy had promulgated its own equal employment policy that gives employees even more robust protections than those afforded under Title VII. And the employee argued that the hospital’s stated commitment to nondiscrimination on religious grounds amounted to a waiver of Title VII’s religious organization exemption. The court rejected this contention. Although a religious organization can procedurally forfeit the exemption (if, for example, it fails to raise the exemption in its defense), “if an entity continues to be a religious corporation, the religious organization exemption is not something that can be waived,” the court wrote.

“As a religious corporation, Mercy remains free to discriminate against its employees on the basis of religion, whether or not Mercy has adopted an internal policy claiming it will not do so,” the court found. The hospital may well have discriminated against the employee on religious grounds, but it was not subject to liability under Title VII. The court granted the hospital’s motion for judgment on the pleadings.