Last week, the Ninth Circuit Court of Appeals denied an en banc review of a panel decision dismissing a Title VII religious claim filed against a hospital employer. The claim was filed by a plaintiff who was fired after refusing to follow COVID-19 testing protocols based on claimed religious beliefs. The panel concluded that the plaintiff’s explanation of her objection to testing involved purported carcinogens contained in the cotton swab used to obtain the testing sample. It said that she failed to show a nexus between her religious beliefs and her objections to the testing. The plaintiff then sought review of this dismissal by the full Ninth Circuit. 

The Ninth Circuit judges denied the petition, but in an unusual move, eight of the judges (all appointees of President Donald Trump) dissented, arguing that federal courts have no business determining the veracity of an employee’s religious beliefs. If the employee professes a sincere religious belief, the dissenters argued that courts have no ability to inquire into the logic or consistency behind those beliefs. In a separate dissent, one of the Ninth Circuit judges noted that most religious accommodations include some secular reason for the request, and that this alone should not remove the accommodation obligation.

As repeatedly noted in EmployNews, since the U.S. Supreme Court relaxed the standard for employees to show an entitlement to religious accommodations, some federal courts have been more willing than in the past to require plaintiffs to explain why their professed beliefs require the accommodation. These courts have declined to assume that the accommodation request is based on bona fide religious beliefs, or to limit their review to whether the request presents an undue hardship to the company.

In future cases, it is likely that this tension among the federal courts will continue. Eventually, the Supreme Court may be called upon to address the question of how far federal courts can go in assessing employees' claimed religious purposes for workplace accommodations.

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