ALICIA LOWE; JENNIFER BARBALIAS; GARTH BERENYI; DEBRA CHALMERS; NICOLE GIROUX; ADAM JONES; NATALIE SALAVARRIA v. JANET T. MILLS, in her official capacity as Governor of the State of Maine; JEANNE M. LAMBREW, in her official capacity as Commissioner of the Maine Department of Health and Human Services; NANCY BEARDSLEY, in her official capacity as Acting Director of the Maine Center for Disease Control and Prevention; MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS HEALTHCARE LLC; MAINEGENERAL HEALTH; NORTHERN LIGHT EASTERN MAINE MEDICAL CENTER
No. 22-1710
United States Court of Appeals For the First Circuit
May 25, 2023
MTM ACQUISITION, INC., d/b/a Portland Press Herald/Maine Sunday Telegram, Kennebec Journal, and Morning Sentinel; SJ ACQUISITION, INC., d/b/a Sun Journal, Intervenors.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy,
* Pursuant to
Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, and Liberty Counsel were on brief, for appellants.
Kimberly L. Patwardhan, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy Attorney General, Chief, Litigation Division, were on brief, for appellees Janet T. Mills, Jeanne M. Lambrew, and Nancy Beardsley.
James R. Erwin, Katharine I. Rand, Katherine L. Porter, and Pierce Atwood LLP on brief for appellees MaineHealth, Genesis HealthCare of Maine, LLC, Genesis HealthCare LLC, and MaineGeneral Health.
Ryan P. Dumais and Eaton Peabody on brief for appellee Northern Light Eastern Maine Medical Center.
LYNCH, Circuit Judge. Since 2021, Maine has required certain healthcare facilities to ensure that their non-remote workers are vaccinated against COVID-19. See
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.
The plaintiffs filed this suit against three Maine government officials in their official capacities (we refer to them collectively as the “State“) and the Providers. The claims against the State assert, among other things, that the Mandate, by allowing medical but not religious exemptions, violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution. Against the Providers, the plaintiffs brought, inter alia, claims under Title VII of the Civil Rights Act of 1964, contending that the Providers’ refusal to accommodate the plaintiffs’ religious beliefs by exempting them from the vaccination requirement amounted to unlawful employment discrimination on the basis of religion. The district court dismissed the complaint. See Lowe v. Mills, No. 21-cv-00242, 2022 WL 3542187, at *1 (D. Me. Aug. 18, 2022).
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 factual development, that the Mandate treats comparable secular and religious activity dissimilarly without adequate justification. We affirm in part and reverse in part.
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.
Until 2019, state law allowed exemptions from healthcare-worker vaccination requirements for most diseases under three circumstances: when an employee submitted (1) “a physician‘s written statement that immunization against one or more diseases may be medically inadvisable,” or a written statement that vaccination was contrary to a “sincere [(2)] religious or [(3)] philosophical belief.”3
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, including the Providers, must be vaccinated. See
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 conception to natural death, and that abortion is a grave sin against God and the murder of an innocent life.”
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
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 barring the State from enforcing the Mandate against the employer plaintiff and requiring the Providers to grant the employee plaintiffs religious exemptions from COVID-19 vaccination. The district court denied the motion. See Does 1-6 v. Mills, 566 F. Supp. 3d 34, 39 (D. Me. 2021). This court affirmed, concluding that the plaintiffs had not shown a likelihood of success on the merits, that they would likely suffer irreparable harm absent preliminary relief, or that the balance of the equities or the public interest favored an injunction.10 See Does 1-6 v. Mills, 16 F.4th 20, 29-37 (1st Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills, 142 S. Ct. 1112 (2022). The Supreme Court denied the plaintiffs’ application for injunctive relief, see Does 1-3 v. Mills, 142 S. Ct. 17, 17 (2021) (mem.), and their petition for certiorari, see Does 1-3, 142 S. Ct. at 1112.
After remand to the district court, two Maine newspapers intervened in the case to challenge the plaintiffs’ use of pseudonyms. The district court granted the newspapers’ motion to unseal the plaintiffs’ identities and ordered the plaintiffs to file an amended complaint identifying themselves by name, see Does 1-6 v. Mills, No. 21-cv-00242, 2022 WL 1747848, at *7 (D. Me. May 31, 2022), and this court denied a stay of the order pending appeal, see Does 1-3 v. Mills, 39 F.4th 20, 22 (1st Cir. 2022). Following this court‘s decision, the plaintiffs voluntarily dismissed their appeal.
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 against the State, or the Supremacy Clause and § 1985 conspiracy claims. The plaintiffs have thus waived any arguments on those points, and we affirm those aspects of the district court‘s decision. See, e.g., Douglas, 63 F.4th at 54 n.6. That leaves the free exercise and equal protection claims against the State and the Title VII claims against the Providers at issue.
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 State argues that comparing the risks created by the two exemptions in this way is inappropriate because “Maine‘s asserted interest in providing only a medical exemption . . . is not based on comparative assessments of risk,” but instead on keeping vaccination rates high to protect Mainers, and especially Mainers medically unable to be vaccinated. But the State has not asserted an independent interest in maximizing vaccination rates apart from the public health benefits of doing so, and the Supreme Court has instructed us to assess comparability in the public health context based on “the risks various activities pose.” Id. at 1296. The State‘s argument that it did not independently conduct this type of analysis is, if anything, a reason to be skeptical that dismissal is appropriate absent further factual development.
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 a medical exemption aligns with the State‘s interest in protecting public health and, more specifically, medically vulnerable individuals from illness and infectious diseases, while non-medical exemptions . . . do not.” (Quoting Lowe, 2022 WL 3542187, at *12.) But, drawing all reasonable inferences in the plaintiffs’ favor, it is plausible that a version of the Mandate that did not include a medical exemption could do an even better job of serving the State‘s asserted public health goals, and that the inclusion of the medical exemption undermines the State‘s interests in the same way that a religious exemption would by introducing unvaccinated individuals into healthcare facilities.
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
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
exemption permitted under the CMS rule, which requires a worker seeking an exemption to provide signed documentation from a “licensed practitioner” that the worker has “recognized clinical contraindications to COVID-19 vaccines,” e.g., id. at 61,619-20, is more restrictive than the medical exemption under Maine law, see
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 three contraindications are vanishingly rare -- with approximately five instances of anaphylaxis and four cases of TTS occurring per million vaccine doses administered -- such that “the approximately 11 or 12 persons that would suffer an adverse reaction to a COVID-19 vaccination based on Maine‘s entire population (not just persons subject to the [Mandate]) is about the same [as the] number
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 gaps in the State‘s argument. First, the State does not explain how many facilities and workers covered by the Mandate actually fall within the CMS rule‘s coverage, simply stating that “many” do.13 Second, it does not address how many individuals might qualify for medical exemptions under the CMS rule based on known allergies to COVID-19 vaccines; it instead discusses the prevalence of only two of the three contraindications it describes. Third, the State‘s argument does not show how many individuals would likely seek religious exemptions from the Mandate, were they available, instead assuming that the number would be significantly greater than the number of plaintiffs in this case. Given those gaps, and the requirement at this stage to draw all reasonable inferences in the plaintiffs’ favor, it remains plausible that the Mandate‘s medical exemption creates comparable risks to those that would be created by a religious exemption, warranting strict scrutiny.14
Because it is plausible, based on the complaint and without the benefit of factual development, that the Mandate is subject to strict scrutiny, dismissal would be appropriate only if the materials we may consider on a motion to dismiss establish that the Mandate survives that standard of review even when applying the
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
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 employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of
This court “appl[ies] a two-part framework in analyzing religious discrimination claims under Title VII.” Sanchez-Rodriguez 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
Although undue hardship is an affirmative defense, see id., dismissal on a
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
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 “made clear that . . . exemptions could be granted only for medical reasons,” that granting the plaintiffs’ desired accommodation would require violating the Mandate, and that “noncompliant employers would face fines and loss of licensure.” He reiterated:
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 administrators to violate a state criminal statute, thereby “expos[ing] [the] administrators to a substantial risk of criminal prosecution, fines, and expulsion from the profession.”19 Id. at 891; see id. at 890-91. While violating the Mandate would not carry a risk of criminal charges, it would create a substantial risk of enforcement, fines, and license suspension. Indeed, the threat to the Providers’ business is, if anything, more direct in this case than in Board of Education, where the court discussed a risk of charges against the defendant‘s employees, see id. at 891; here, the objects of enforcement actions would be the Providers themselves, see
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 Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir. 1984); see also Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830 (9th Cir. 1999) (“[C]ourts agree that an employer is not liable under Title VII when accommodating an employee‘s religious beliefs would require the employer to violate federal or state law.“); Tagore v. United States, 735 F.3d 324, 329-30 (5th Cir. 2013) (citing Sutton with approval in a case involving a proposed accommodation that would require an employer to violate federal law).
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 penalties for violating other laws can render a proposed accommodation an undue hardship. And, for the reasons described above, we hold that this case falls in that category.
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
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 comply with the [Mandate].”21 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 [religious exemptions], then they‘re violating the . . . Mandate.” The guidance document does not save the Title VII claim.
In their final counterargument, the plaintiffs assert that Title VII preempts
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 enforcement authority with respect to the Mandate, and they have no power to determine for the State that the Mandate is invalid under Title VII. Violating the Mandate would thus have exposed them to a risk of immediate license suspension -- an undue hardship that Title VII did not require them to suffer.22
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,