Lowe v. MillsLowe v. Mills
The plaintiffs in this case are seven Maine healthcare workers who allege that their sincerely held religious beliefs prevent them from receiving any of the available COVID-19 vaccines. After Maine introduced the Mandate, the plaintiffs requested that their employers -- healthcare providers Genesis HealthCare of Maine, LLC; Genesis HealthCare LLC; MaineGeneral Health; MaineHealth; and Northern Light Eastern Maine Medical Center (collectively, the “Providers“) -- exempt them from the vaccination requirement based on these religious beliefs. The Providers denied the requests, explaining that religious exemptions were not available under state law. The plaintiffs’ employment was later terminated after they refused to accept COVID-19 vaccination.
We agree with the district court that the complaint‘s factual allegations establish that violating the Mandate in order to provide the plaintiffs’ requested accommodation would have caused undue hardship for the Providers, and so affirm the dismissal of the Title VII claims.1 But we conclude that the plaintiffs’ complaint states claims for relief under the Free Exercise and Equal Protection Clauses, as it is plausible, based on the plaintiffs’ allegations and in the absence of further
I.
A.
Maine law has required that certain licensed healthcare facilities ensure that their employees are vaccinated against various diseases since 1989.2 See 1989 Me. Laws ch. 487, § 11 (mandating that employers require proof of either immunization against or serologic immunity to measles and rubella). Since 2001, the Maine Department of Health and Human Services (the “Department“) has had regulatory authority to designate by rule diseases against which healthcare employers must require proof of immunization. See 2001 Me. Laws ch. 185, § 2. Prior to the COVID-19 pandemic, the Department required vaccination for measles, mumps, rubella, chickenpox, hepatitis B, and influenza.
In June 2021, the legislature amended the statute governing enforcement of the healthcare-worker vaccination requirements to augment the potential penalties for violations. See 2021 Me. Laws ch. 349, §§ 8-9 (codified at
Any person who neglects, violates or refuses to obey the [vaccination] rules or who willfully obstructs or hinders the execution of the rules may be ordered by the [D]epartment . . . to cease and desist. . . . In the case of any person who refuses to obey a cease and desist order issued to enforce the [vaccination] rules . . . , the [D]epartment may impose a fine, which may not be less than $250 or greater than $1,000 for each violation. Each day that the violation remains uncorrected may be counted as a separate offense. . . .
A licensing agency under the [D]epartment may immediately suspend a license . . . for a violation under this section.
In August 2021, the Department conducted an emergency rulemaking that added COVID-19 to the list of diseases against which non-remote healthcare workers at licensed facilities,
B.
Because this appeal follows a dismissal for failure to state a claim, we draw the facts from the plaintiffs’ complaint. See, e.g., Douglas v. Hirshon, 63 F.4th 49, 52 (1st Cir. 2023).
The plaintiffs in this case are seven individuals formerly employed by the Providers in positions covered by the Mandate.6 The plaintiffs allege that they object to receiving any of the available COVID-19 vaccines on religious grounds “because of the connection between the . . . vaccines and the cell lines of aborted fetuses . . . in the vaccines’ origination, production, development, testing, or other inputs,” which conflicts with the plaintiffs’ belief “that all life is sacred, from the moment of
Each plaintiff requested a religious “exemption and accommodation” from his or her employer excusing him or her from vaccination. The plaintiffs “offered, and [were] ready, willing, and able to comply with . . . [other] health and safety requirements to facilitate their religious exemption,” such as by “wear[ing] facial coverings, submit[ting] to reasonable testing and reporting requirements, [and] monitor[ing] symptoms.”
The Providers denied each request, explaining in their responses that the Mandate did not permit religious exemptions. After the plaintiffs refused to accept vaccination, they were terminated from their employment.
C.
The original complaint in this action was filed on August 25, 2021, in the U.S. District Court for the District of Maine against Governor Janet Mills, Department Commissioner Jeanne Lambrew, and then-Maine Center for Disease Control and Prevention (“Maine CDC“) Director Nirav Shah7 (the officials we refer to collectively as the “State“) and the Providers.8 The complaint,
The complaint included five counts. Against the State, it challenged the Mandate under the First Amendment‘s Free Exercise Clause and the Fourteenth Amendment‘s Equal Protection Clause. Against the Providers, it raised Title VII claims for failure to accommodate the plaintiffs’ religious beliefs. And it alleged that all defendants had violated the Supremacy Clause by purportedly claiming that the Mandate superseded Title VII‘s requirements, and had conspired to violate the plaintiffs’ civil rights in violation of
The same day the complaint was filed, the plaintiffs moved for a temporary restraining order and preliminary injunction
The plaintiffs filed the operative first amended complaint (the “complaint“) in July 2022. This amended pleading removes some of the original plaintiffs (leaving only the seven plaintiffs who allege they were employed by the Providers), identifies the remaining plaintiffs by name, and updates some factual allegations to reflect developments since the original complaint‘s filing (such as the plaintiffs’ termination from their employment with the Providers), but includes the same claims as the original complaint.
The defendants moved to dismiss. The State argued that some of the claims must be dismissed for lack of jurisdiction under
The district court granted the defendants’ motions and dismissed the complaint. See Lowe, 2022 WL 3542187, at *1. It first dismissed the claims against Governor Mills and the damages claims against the State because the plaintiffs had failed to respond to the State‘s
This timely appeal followed.
II.
We review a district court‘s dismissal of a complaint under
The plaintiffs’ briefing on appeal does not address the dismissal of the claims against Governor Mills, the damages claims
A.
1.
We begin with the free exercise claim. “The First Amendment‘s Free Exercise Clause, as incorporated against the states by the Fourteenth Amendment, protects religious liberty against government interference.” Mills, 16 F.4th at 29. A key issue with respect to this claim is the appropriate standard of scrutiny. A law that incidentally burdens religion is subject only to rational basis review if it is religiously neutral and generally applicable. E.g., id. A law that is not neutral or generally applicable is subject to strict scrutiny. E.g., id. A law is not generally applicable if it “treat[s] any comparable secular activity more favorably than religious exercise.” Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam); see also Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021) (“A law . . . lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government‘s asserted interests in a similar way.“). Applying the
The Supreme Court has explained that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue,” and that “[c]omparability is concerned with the risks various activities pose.” Tandon, 141 S. Ct. at 1296; see also We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 285-88 (2d Cir. 2021) (conducting comparability analysis in context of New York vaccine mandate for healthcare workers). Tandon, for example, held that a group of plaintiffs was likely to succeed in a free exercise challenge to a California law that, in response to the COVID-19 pandemic, sought to reduce the virus‘s spread by limiting religious gatherings in homes to no more than three households, but “permitt[ed] hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.” 141 S. Ct. at 1297; see id. at 1298 (Kagan, J., dissenting). The Court determined that these secular activities were comparable to the prohibited religious gatherings because the record did not show that they “pose[d] a lesser risk of transmission than [the plaintiffs‘] proposed religious exercise at home.” Id. at 1297 (majority opinion).
As its principal interest in permitting medical but not religious exemptions to the Mandate, the State cites a goal of “revers[ing] the trajectory of falling vaccination rates in order to prevent communicable, preventable diseases from spreading in . . . healthcare facilities . . . so that all persons medically unable to be vaccinated [can] be protected.” The State also cites a more general interest in “protecting the lives and health of Maine people.” (Quoting Lowe, 2022 WL 3542187, at *14.) Drawing all reasonable inferences in the plaintiffs’ favor, it is plausible based on the plaintiffs’ allegations that the medical exemption undermines these interests in a similar way to a hypothetical religious exemption. The availability of a medical exemption, like a religious exemption, could reduce vaccination rates among healthcare workers and increase the risk of disease spread in healthcare facilities, compared to a counterfactual in which the Mandate contains no exceptions, all workers must be vaccinated, and neither religious objectors nor the medically ineligible can continue working in healthcare facilities. Cf. Tandon, 141 S. Ct. at 1297 (comparing risk of disease transmission).
The State also references in passing an interest in “safeguarding Maine‘s healthcare capacity.” (Quoting Lowe, 2022 WL 3542187, at *14.) While excusing some workers from vaccination for medical reasons may protect Maine‘s “healthcare capacity” by making more workers available, authorizing a religious exemption plausibly could have a similar effect. We thus cannot conclude, at least without more facts, that this interest renders the two exemptions incomparable.
The State asserts that the medical exemption is “fundamentally different . . . [from] a religious exemption because
Of course, it is entirely possible that additional facts might show that the two types of exemption are not comparable. For example (and not by way of limitation), it may be that medical exemptions are likely to be rarer, more time limited, or more geographically diffuse than religious exemptions, such that the two exemptions would not have comparable public health effects. Cf. We the Patriots, 17 F.4th at 286 (discussing evidence suggesting that medical and religious exemptions to a New York vaccine mandate were “not comparable in terms of the ‘risk’ that they pose[d]” (quoting Tandon, 141 S. Ct. at 1296)). We reject the plaintiffs’ apparent view that the only relevant comparison is between the risks posed by any one individual who is unvaccinated for religious reasons and one who is unvaccinated for medical
The State does advance a comparability argument based on facts outside the complaint that it argues we may nonetheless properly consider. The State cites a Federal Centers for Medicare and Medicaid Services (“CMS“) interim final rule governing staff vaccination requirements in certain healthcare facilities, including hospitals and long-term care facilities, that receive Medicare and Medicaid funds, which the State represents “covers many of the same healthcare entities as Maine‘s [Mandate].” See Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (codified at
The State then argues that this narrower CMS medical exemption would permit only a small number of healthcare workers to obtain medical exemptions from the Mandate. Citing a U.S. Centers for Disease Control and Prevention (“CDC“) fact sheet, the State represents that “CDC[-]recognized contraindications to vaccination are limited to [(1)] known allergies [to vaccine components], [and (2)] severe allergic reactions (anaphylaxis) . . . and [(3)] cardiac conditions (TTS) occurring after the administration of a prior dose of a COVID-19 vaccine.”11 Citing a CDC webpage, the State argues that at least two of these
Comparisons of this sort may well be relevant to the comparability inquiry. See We the Patriots, 17 F.4th at 286. But these limited data are insufficient to resolve the comparability inquiry at the motion-to-dismiss stage -- even assuming we may properly consider them. Cf. Freeman, 714 F.3d at 35-37 (discussing limits on consideration of materials outside complaint in evaluating motion to dismiss). Even accepting, for the sake of argument, the State‘s premise that the narrower medical exemption under the CMS rule is relevant to the comparability analysis in this case, its interpretation of the CMS rule and the CDC‘s clinical recommendations, and its calculations about the prevalence of anaphylaxis and TTS, there are several significant
The State does briefly contend that the Mandate survives strict scrutiny, but its argument does not justify dismissal on the pleadings. It argues that a statement issued by the Maine CDC in November 2021, when the agency made the regulation requiring COVID-19 vaccination for healthcare workers permanent, establishes that the Mandate is the least restrictive means to achieve the State‘s public health goals. The statement discusses the agency‘s reasoning concerning why alternative measures, such as mandatory
We emphasize the narrowness of our holding. We do not determine what standard of scrutiny should ultimately apply to the free exercise claim. Nor do we decide whether the Mandate survives the applicable level of scrutiny. Those questions are not before us. We hold only that, applying the plausibility standard applicable to Rule 12(b)(6) motions and drawing all reasonable inferences from the complaint‘s factual allegations in the
2.
We next consider the plaintiffs’ equal protection claim, which alleges that the Mandate burdens their free exercise rights and discriminates on the basis of religion. The district court reasoned that, because it had concluded that the free exercise claim warranted only rational basis review, an equal protection claim resting on the assertion that the Mandate burdens the plaintiffs’ free exercise rights must also receive rational basis review. Lowe, 2022 WL 3542187, at *14-15 (citing Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005)). The court determined that the Mandate survives rational basis review under the Equal Protection Clause for the same reasons as in the free exercise context. See id. at *15. On appeal, the State endorses this reasoning. It does not develop any argument that, if we reverse the dismissal of the free exercise claim, we can nonetheless affirm the dismissal of the equal protection claim. As a result, because we reverse the dismissal of the free exercise claim, we also reverse the dismissal of the equal protection claim.
B.
We turn to the plaintiffs’ Title VII claims against their former employers, the Providers. As relevant here, Title VII declares it an “unlawful employment practice for an
This court “appl[ies] a two-part framework in analyzing religious discrimination claims under Title VII.” Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 12 (1st Cir. 2012). “First, [a] plaintiff must make [her] prima facie case that a bona fide religious practice conflicts with an employment requirement and was the reason for the adverse employment action.” Id. (quoting Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004)). “[T]he burden then shifts to the employer to show that it offered a reasonable accommodation or, if it did not offer an accommodation, that doing so would have resulted in undue hardship.” Cloutier, 390 F.3d at 133. The Providers do not dispute that the plaintiffs have adequately alleged a prima facie case sufficient to survive a Rule 12(b)(6) motion, and do not claim that they offered any reasonable
Although undue hardship is an affirmative defense, see id., dismissal on a Rule 12(b)(6) motion is nonetheless appropriate if “the facts establishing the defense [are] clear on the face of the plaintiff[s‘] pleadings” and “there is ‘no doubt’ that the plaintiff[s‘] claim[s] [are] barred,” Zenon, 924 F.3d at 616 (first alteration in original) (internal quotation marks omitted) (first quoting Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 114 (1st Cir. 2009); and then quoting Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001)). The complaint and the plaintiffs’ briefing make clear that the plaintiffs would accept only one accommodation: a religious exemption allowing them to continue in their roles without receiving a vaccine while observing other precautions, such as masking and testing.16 We thus need only determine whether that accommodation would have constituted an undue hardship.17 See Cloutier, 390 F.3d at 134-35. We agree with
1.
Maine law makes clear that, by providing the plaintiffs their requested accommodation as described in the complaint, the Providers would have risked onerous penalties, including license suspension. The Mandate requires the Providers to “require for all employees who do not exclusively work remotely [and who are not medically exempted] a [c]ertificate of [i]mmunization . . . against . . . COVID-19.”
The complaint itself acknowledges the threat to the Providers’ licenses. Quoting a press release from the Governor‘s office announcing the Mandate, it states: “[T]he [healthcare] organizations to which th[e] [Mandate] applies must ensure that each employee is vaccinated, with this requirement being enforced as a condition of the facilities’ licensure.”18 The complaint then declares (in bolded text): ”Thus, the Governor has threatened to revoke the licenses of all health care employers who fail to mandate that all employees receive the COVID-19 vaccine.” The only reasonable inference from this allegation and from the relevant Maine law, both of which we may properly consider in reviewing the dismissal of the Title VII claims, see Eves v. LePage, 927 F.3d 575, 578 n.2 (1st Cir. 2019) (en banc), is that granting the requested accommodation would have exposed the Providers to a substantial risk of license suspension, as well as monetary penalties.
The plaintiffs’ counsel essentially agreed with this conclusion at oral argument. Counsel observed that the State had
Maine . . . [went] to the extreme to say [that] no one can grant a religious exemption, and that if an employer grants a religious-based exemption, they could lose their license and they will be fined. That is an extraordinary step by the State of Maine against its employers . . . . It puts the employers to a great extent in this damned-if-you-do, damned-if-you-don‘t . . . situation.
And he acknowledged that “obviously, [the plaintiffs‘] real interest is with the State.”
The risk of license suspension for violating the Mandate would have constituted an “undue hardship on the conduct of the [Providers‘] business” under any plausible interpretation of that phrase.
We are aware that the Supreme Court has heard argument in a case in which the petitioner asks it to reconsider the more-than-de-minimis-cost interpretation of “undue hardship,” see Groff v. DeJoy, No. 22-174 (U.S. argued Apr. 18, 2023), but our holding is not dependent on that formulation of the legal standard. Rather, we hold that the plaintiffs’ requested accommodation would have constituted an undue hardship under any plausible interpretation of the statutory text. For example, the Americans with Disabilities Act (“ADA“) also includes an “undue hardship” defense: the Act forbids “discriminat[ion] [in employment] against a qualified individual on the basis of disability,”
Other circuits’ caselaw addressing the interaction between Title VII‘s undue hardship defense and state law supports our conclusion. For example, the Third Circuit, in United States v. Board of Education, 911 F.2d 882 (3d Cir. 1990), concluded that an accommodation would have constituted an undue hardship for an employer school board where it would have required the board‘s
The Ninth Circuit has similarly held that accommodations that would force private employers to “risk liability for violating” state law constitute undue hardships under Title VII.20
Several circuits have also held that accommodations that would require employers to violate other federal laws are not required by Title VII -- sometimes on the theory that such a violation precludes the plaintiff from making out a prima facie case, and sometimes on the theory that such an accommodation would constitute an undue hardship. See Truskey v. Vilsack, No. 21-5821, 2022 WL 3572980, at *3 (6th Cir. Aug. 19, 2022) (unpublished decision) (collecting cases from Fourth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits).
We need not and do not decide whether every accommodation that would require an employer to violate state or federal law would necessarily constitute an undue hardship under Title VII. But these out-of-circuit decisions confirm that potential
2.
The plaintiffs’ counterarguments fail. Importantly, they do not develop any meaningful argument that the risk of license suspension in this case is insufficiently burdensome as to have constituted an undue hardship for the Providers. Indeed, as discussed above, the plaintiffs’ counsel at oral argument acknowledged the difficulty faced by the Providers, characterizing it as a “damned-if-you-do, damned-if-you-don‘t . . . situation.” The plaintiffs instead argue that factual issues make dismissal under Rule 12(b)(6) inappropriate and that Title VII preempts the Mandate and requires the Providers to grant the requested accommodation. We find these contentions unpersuasive.
The plaintiffs assert generally that whether their requested accommodation would constitute an undue hardship “is a question of fact not suitable for determination on a motion to dismiss.” As discussed above, however, we conclude that the complaint‘s allegations and the relevant Maine law permit no reasonable inference but that granting the plaintiffs their requested accommodation would have exposed the Providers to a substantial risk of license suspension and other penalties, creating an undue hardship. See Zenon, 924 F.3d at 616 (discussing
The plaintiffs offer two more specific purported factual issues that, they argue, preclude dismissal, but these arguments fare no better. First, they contend that they “plead[ed] and offered available alternatives to compulsory vaccination,” such as masking and testing. This argument misunderstands the undue hardship that the Providers cite, which is not the safety risk from allowing the plaintiffs to work while unvaccinated, but instead the penalties that the Providers would have faced for violating the Mandate. Those penalties would have applied -- and constituted an undue hardship -- regardless of the factual merits of the plaintiffs’ view that their proposed alternatives would be adequate in terms of safety.
Second, the plaintiffs argue in their briefing, based on a Department guidance document, that their requested accommodation would not actually have violated the Mandate. The guidance document at issue states that the Mandate “does not prohibit employers from providing accommodations for employees’ sincerely held religious beliefs, observances, or practices that may otherwise be required by Title VII,” but that “implementation, if such accommodations are provided by a [healthcare employer], must
The plaintiffs assert that the first piece of quoted language shows that the Providers could lawfully have granted their requested accommodation. But this reading ignores the second piece of quoted language; read as a whole, the guidance document makes plain that employers could provide religious accommodations other than exemptions (for instance, by authorizing remote work, which would place the worker outside the Mandate‘s scope) but could not offer religious exemptions to workers covered by the Mandate (since doing so would not comply with the Mandate). The plaintiffs have never alleged or argued that they would have accepted any accommodations that would have placed them outside the Mandate‘s scope. And certainly the Providers could not have confidently relied on the guidance document to conclude that offering religious exemptions would not expose them to penalties for violating the Mandate, such as would render the plaintiffs’ requested accommodation not an undue hardship. Indeed, the plaintiffs’ counsel appeared to retreat from this argument at oral argument, recognizing that “the Maine CDC made clear that . . . exemptions could be granted only for medical reasons,” and that “if [the Providers] . . . even consider
In their final counterargument, the plaintiffs assert that Title VII preempts the Mandate, such that the Providers were required to offer the requested accommodation notwithstanding state law. The Supreme Court has explained that Title VII preempts state laws “only if they actually conflict with federal law.” Cal. Fed. Sav. & Loan Ass‘n v. Guerra, 479 U.S. 272, 281 (1987); see id. at 281-83 (discussing “[t]he narrow scope of pre-emption available under [Title VII]“). The plaintiffs’ argument fails because there is no “actual[] conflict” in this case. As relevant here, Title VII could preempt the Mandate only if it required the Providers to grant the plaintiffs’ requested accommodation. But granting that accommodation would have exposed the Providers to penalties for violating the Mandate, and thus constituted an undue hardship not required by Title VII.
This conclusion follows from Title VII‘s text and structure, which make clear that the undue hardship analysis precedes any conclusion about preemption of state law. The undue hardship defense is built into the statutory definition of “religion,” see
The plaintiffs rely on
Nothing in [Title VII] shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State . . . , other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under [Title VII].
They argue that this provision exempts the Providers from liability for violating the Mandate, which, they assert, purports to require the Providers to violate Title VII by denying them their preferred accommodation.
The plaintiffs’ position takes an extremely broad view of Title VII‘s requirements for employers. Cf. We the Patriots, 17 F.4th at 291-92 (explaining that “Title VII does not require covered entities to provide [whatever] accommodation . . . [p]laintiffs prefer“). But we need not address the merits of this interpretation because, in any event, the Providers do not have
The applicability of the undue hardship defense distinguishes this case from those the plaintiffs cite applying
We conclude that the Title VII claims were properly dismissed.
III.
For the foregoing reasons, we affirm the dismissal of the plaintiffs’ claims under the Supremacy Clause, § 1985, and Title VII. We also affirm the dismissal of the plaintiffs’ claims against Governor Mills and their damages claims against the State. We reverse the dismissal of the remaining claims, and remand for proceedings consistent with this opinion. All parties shall bear their own costs.