This Littler Lightbulb highlights some of the more significant employment law developments in federal courts of appeal in the last month.

Ninth Circuit Reinstates Law Prohibiting Discrimination in Healthcare Settings Based on Vaccination Status

In 2021, Montana enacted legislation, Montana Code Section 49-2-312, prohibiting discrimination in employment based on vaccination status. In December 2022, the Montana federal district court permanently blocked enforcement of the law in healthcare settings, finding the law unconstitutional and preempted by the ADA and OSHA. Healthcare providers and others appealed the decision to the Ninth Circuit, arguing that by preventing Montana healthcare providers from knowing healthcare employees’ vaccination status, the law violated the ADA and OSHA. In healthcare settings, the plaintiffs argued, employers are required to know employee vaccination status to furnish ADA accommodations for patients and employees with immunocompromising disabilities and to satisfy their OSHA duty to furnish a workplace free of recognized hazards.

In Montana Medical Assn. v. Knudsen, __ F.4th __ (9^th Cir. 2024), the Ninth Circuit rejected these arguments. As to the ADA, the court found “the plaintiffs’ ADA claim ‘rests on the faulty premise that the only accommodation available to plaintiffs’ requires employer knowledge of employee vaccination status and discrimination based on that status.” In this regard, the court noted other accommodations that could be made available to immunocompromised individuals such as personal protective equipment or alternative work arrangements.

Regarding the plaintiffs’ OSHA claim, the court found “the district court’s findings at most support a ‘hypothetical or potential conflict’” between OSHA and the Montana legislation. OSHA’s general duty clause “requires a more specific understanding in any given case about the nature of the employer, the workplace, the diseases in question, the risks they pose, the availability and feasibility of other methods of preventing the transfer of vaccine-preventable diseases, and so on,” the Ninth Circuit held.

Accordingly, the court vacated the district court’s decision enjoining enforcement of the section of Montana Code Section 49-2-312 prohibiting discrimination in employment in the healthcare setting based on vaccination status. That section of the law is again in effect and fully enforceable.

Sixth Circuit Nixes Employee’s Religious Objection to COVID-Testing Policy

DeVore v. UK Board of Trustees, __F.4th __ (6th Cir. 2024) involved a university administrator’s religious objection to the university’s COVID-19 policy, which required employees to undergo weekly testing unless they were fully vaccinated against COVID-19. After the university denied her requests for an exemption from the testing based on her religious beliefs, it notified her that she would be terminated from employment for continued non-compliance with the policy unless she elected to retire “in good standing” and receive applicable benefits. She chose to retire and filed suit charging the university with failure to accommodate her religious beliefs in violation of Title VII. The district court granted summary judgment for the university and the plaintiff appealed.

On appeal, the plaintiff argued that mandatory testing is inequitable and unfair but, the Sixth Circuit found, she offered no connection between this assertion and any religious principle she follows, other than her “personal moral code.” In fact, the court held, the plaintiff offered no evidence to show a conflict between her religion and the university’s policy and failed to even identify “what her religion is.” Accordingly, the Sixth Circuit affirmed summary judgment for the university, stating, “[the plaintiff’s] Title VII claim fails.”

Third Circuit Holds Failure to Seek Treatment Prior to Termination Dooms FMLA Claim

After he was terminated from employment as a bus operator, the plaintiff in Rodriquez v. SEPTA, __ F.4th __ (3d Cir. 2024), filed suit in federal court alleging retaliation and interference under the FMLA, based on denial of his application for FMLA leave for migraines. Following a jury verdict in favor of the plaintiff on his FMLA interference claim, the employer filed a motion for judgment as a matter of law, which the district court granted. The plaintiff appealed and the Third Circuit upheld the district court’s decision, finding the plaintiff failed to establish his migraines were a “chronic serious health condition” as defined in the FMLA and its regulations.

The evidence clearly established that the only time the plaintiff visited a healthcare provider to treat his migraines was after his termination to get FMLA paperwork. Although the healthcare provider indicated that “the patient [will] need to have treatment visits at least twice per year due to the condition,” the Third Circuit concluded that “[a] patient does not have a ‘serious health condition’ under [the FMLA] if he waits to see a healthcare provider until after the relevant absences.” The “operative time for determining whether a particular condition qualifies as a serious health condition,” the court emphasized, “is the time that leave is requested or taken,” not after the employee is terminated from employment.

Seventh Circuit: ADA Does Not Protect Individuals Who Are Unable to Perform Essential Job Functions, Even if the Inability is Due to a Disability

The plaintiff in Schoper v. Board of Trustees of Western Illinois University, __ F.4th __ (7^th Cir. 2024), a tenure-track assistant professor, suffered a traumatic brain injury that caused difficulty in retrieving words and other physical disabilities. After 46 days in the hospital, she returned to work teaching the same courses she had previously taught and continued to work towards tenure at the university. Students began complaining about her teaching skills, and the written reviews of her teaching performance dropped dramatically, with students writing negative comments about her teaching abilities for the first time in her career. One student described her as a “weed that needed to be plucked.” Another compared her abilities to a preschooler. While other students suggested that she was “not the teacher [she] used to be and that [she] needed more time to recover,” several complained that she “had favorites in class and graded based on personal preference; that she focused too much on getting her students to like her; that she did not know how to take feedback; made class feel like a waste of time; and that she would regularly complain about not having tenure and bad-mouth other teachers.”

When the plaintiff was denied tenure based mainly on her teaching evaluations, she filed suit in federal court alleging that the university discriminated against her on the basis of her disability in violation of the ADA, and failed to offer her reasonable accommodation by denying her request for reconsideration of her tenure application. The district court granted summary judgment to the university on both claims, and the plaintiff appealed.

The Seventh Circuit affirmed the district court’s decision on the grounds that the plaintiff was denied tenure because she could not meet the essential requirements for the job of tenured professor, not because of her disability. The court rejected the plaintiff’s argument that the tenure decision was based on some students’ disability-related comments, stating that while some of the comments were troubling, “the comments just as easily could have been directed to teachers of questionable quality who are not disabled.”

As to her failure-to-accommodate claim, the appellate court quoted a prior Seventh Circuit decision stating, “the Act ‘does not shelter disabled individuals’ if they are unable ‘to fulfill the requirements of the position as prescribed by the employer or fail[] to meet [their] employer’s expectations.’” Importantly, the court reiterated, “‘This is true even if, after further inquiry, an employer determines that the employee’s inability to perform the job is due entirely to a disability.’” If the plaintiff was not a qualified individual under the ADA, the court held, the university had no obligation to accommodate her by reconsidering her tenure application.

Fourth Circuit Holds Pretext Under ADEA and Title VII Requires Proof of Improper Motive

In Vassileva v. City of Chicago, __ F.4th __ (4th Cir. 2024), a city employee claimed the city violated the ADEA and Title VII by declining to interview her for a promotion because of her age, gender, or Bulgarian origin, or as retaliation for previously filing charges of discrimination with the EEOC. The Seventh Circuit affirmed the district court’s decision granting summary judgment to the employer because the plaintiff failed to provide sufficient evidence to support her claims.

In support of her discrimination claim the plaintiff asserted that the city’s explanation for failing to interview her—lack of the supervisory experience required for the position—was a pretext because the city offered a different explanation for failing to promote her when she had previously applied for the same position. Rejecting this argument, the Seventh Circuit stated: “To show pretext, a plaintiff ‘must do more than simply allege that an employer’s stated reasons are inaccurate; [she] must still have some circumstances to support an inference that there was an improper motivation proscribed by law.’” Because the plaintiff did not offer evidence of impermissible motivation for the city’s decision, the court held, her discrimination claim lacked merit.

As to plaintiff’s retaliation claim, the court found that the decision-maker did not know of her EEOC charge and therefore could not have excluded her from the interview list in retaliation for her EEOC charge.

Eighth Circuit Also Rejects Pretext Claim in the Absence of Proof that Race was “a Motivating Factor” in the Decision

In another case addressing pretext, Morris v. VA, __F.4th __ (8th Cir. 2024), the Eighth Circuit affirmed summary judgment for the employer in a claim by a social worker that a white co-worker was promoted instead of her because of her race. The plaintiff alleged that the reasons the employer gave for promoting the other applicant instead of her—more favorable references, the plaintiff’s tendency to micro-manage, timeliness in responding to action items, and difficulty with interpersonal skills—were a pretext for discrimination in violation of Title VII.

The Eighth Circuit rejected plaintiff’s claim, stating that to prevail on her claim the plaintiff “must demonstrate a causal connection between her protected characteristic and the employer's decision, specifically, that [her] race ‘was a motivating factor’ for [the] decision.” Assessing the facts in the case, the court found there was no evidence of such causal connection and therefore summary judgment for the employer was appropriate.