By Brandi O. Brown, J.D.
In a religious discrimination suit by the EEOC on behalf of an employee fired by a medical center for refusing to either obtain a flu vaccination or to wear a mask at work, a federal district court in Massachusetts addressed the parties’ motions to compel discovery, granting some concessions to both sides. With respect to the EEOC’s motion, the court held that the agency should receive some, but not all, of the information it sought concerning other employees who refused vaccines and their treatment afterwards. In a separate opinion, the court found the employer entitled to additional information on the employee’s belief that “her body is a temple” and supporting the religious nature of her belief. The EEOC was also directed to supplement its answer concerning whether wearing a mask conflicted with her religious beliefs. The motions were granted in part (EEOC v. Baystate Medical Center, Inc., October 30, 2017, Robertson, K.).
Anti-vaccination Christian. The employee, who identifies as Christian, was hired in 2014 to be a talent acquisition consultant in human resources. She claimed that her faith has, since 2007, caused her to believe that “her body is a temple” and, as a result, she rejects “injections of any kind, as well as drugs and vaccines.” In 2015, she completed a form notifying her employer that she was declining the flu vaccine required under a policy applicable to all employees, physicians, students, volunteers, and vendors. Under the policy, if someone refuses to be vaccinated, he or she is required to wear a mask at all times while at the employer’s facilities. Those who do not comply are placed on unpaid leave until they comply or flu season ends. Affected employees’ jobs are not protected.
Placed on leave. When the employee submitted the form notifying the employer she was declining the vaccine on religious grounds, she was given a mask to wear while working. However, she allegedly received complaints that others could not understand her when she was wearing the mask, so she pulled it down on multiple occasions while speaking. She notified the employer that the mask interfered with her ability to communicate. Two weeks after she was given the mask, she was suspended without pay and without job protection because she was observed not wearing it. She complained of religious discrimination and asked for an accommodation. She was told she could not return to work unless she was vaccinated or agreed to wear the mask always. She declined and the employer informed her that it interpreted her response as a resignation and that she was not eligible for rehire. The EEOC sued on her behalf.
Discovery regarding religious beliefs. In its motion to compel discovery, the employer sought information from the EEOC regarding the employee’s religious beliefs. In fact, the court explained, the plaintiff must make out a prima facie case that a “bona fide religious practice” conflicted with the employer’s requirement and was the reason for the adverse action. Title VII does not require an employer to accommodate a “purely personal preference” and the burden of proof in that regard is on the plaintiff. Thus, the court agreed with the employer that the EEOC’s response to a request for detailed description of the ways in which the employee “adheres to her belief that ‘her body is a temple’ including any associated practices, rituals, observances, as well as each and every substance she refrains from taking into her body” was not adequately answered with the response that the employee “does not permit anything into her body against her will that might defile her body, such as vaccines, oral contraceptives, and other medications.” The court ordered the EEOC to supplement that response.
The court also agreed that the employer was entitled to information on medical treatment the employee received from 2012 to the present, explaining that the information was relevant to whether she was observing a religious belief or indulging her personal preference in declining the vaccine. The information would be subject to a protective order and its relevance outweighed any privilege. Moreover, in light of the EEOC’s response that the mask did not constitute a religious accommodation, the court granted the employer’s motion to compel information regarding “whether or not wearing a mask conflicts with any of Ms. Clarke’s religious beliefs.” The court also directed the agency to provide further information regarding the individuals who had complained about not being able to understand her and any supervisors who had expressed concerns about her ability to perform her job because of the mask.
Random sampling. In its motion, the EEOC sought to compel the employer to provide comparator information. It wanted the employer to provide detailed information about all 500 personnel members who did not receive the flu vaccine. Although the agency indicated that it intended to discover whether those employees had similar difficulties with communications because of the mask, the court found that the agency’s “contentions regarding relevance may fairly be described as speculative.” Instead of giving the agency the entire universe of what it sought, the court, balancing the concerns of overbreadth and privacy with the right to relevant information, instructed that a random sampling of 75 of the 500 listed employees should be provided instead. Included in that information would be the reason each of the employees declined to be vaccinated.
Discipline of other noncompliant employees. However, in addition to the details regarding those 75 randomly identified individuals, the court concluded that the EEOC sustained its burden as to the relevance of information on disciplinary actions taken against other noncompliant employees. It did not, however, agree that the entire personnel record of those employees was subject to discovery—only those documents concerning the policy and resulting disciplinary actions should be provided. If an individual declined for medical reasons, only that fact should be disclosed, and any additional medical information should be redacted. The court also found the EEOC entitled to the identities of and some documentary information for other employees who had been identified in an interrogatory response as having both declined the immunization and objected to wearing the mask.
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