Court Refuses to Issue Preliminary Injunction Preventing Termination of Employment for Employees Who Refuse COVID-19 Vaccine on Religious Grounds Even Though the Employees Were Likely to Prevail on Their Religious Discrimination Claims

December 26, 2021

By: Stephen B. Stern

     In Doe v. NorthShore University Health System, Case No. 1:21-cv-05683, 2021 U.S. Dist. LEXIS 228371 (N.D. Ill. Nov. 30, 2021), the United States District Court for the Northern District of Illinois held that a preliminary injunction preventing the plaintiffs’ termination from employment for refusing to get vaccinated for COVID-19 was not warranted, even though the plaintiffs objected to the vaccines on religious grounds and the court found that the plaintiffs were likely to prevail on their religious discrimination claims under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).

     The plaintiffs in NorthShore Health were fourteen healthcare professionals who objected on religious grounds to taking the COVID-19 vaccines, which were being mandated by their employer, NorthShore University Health System (“NorthShore”), because the vaccines were developed using cell lines derived from aborted fetuses.  In lieu of being vaccinated, the plaintiffs offered to wear masks full-time and undergo weekly COVID-19 testing.  NorthShore originally denied the plaintiffs’ request for religious exemptions, then it approved the religious exemption requests, but determined that any exempted employee working in an in-person capacity would impose an undue hardship on NorthShore.  The plaintiffs sued claiming religious discrimination under Title VII and, among the relief they requested, they sought a temporary restraining order (“TRO”) and preliminary injunction that would prevent NorthShore from terminating their employment based on their religious objection.  The plaintiffs also sought class certification, as more than 500 employees objected to taking the vaccines on religious grounds.  The court initially entered the TRO on October 29 and then extended the TRO until November 29.  

     To obtain a preliminary injunction, a plaintiff must establish: (1) he/she is likely to prevail on the merits; (2) he/she likely will suffer irreparable harm without preliminary injunctive relief; and (3) “traditional legal remedies would be inadequate” (other courts apply other criteria).  The court started its analysis by analyzing the plaintiffs’ likelihood of success on the merits.

     To establish a prima facie case of religious discrimination under Title VII based on a failure to accommodate, a plaintiff must show “that the observance or practice conflicting with an employment requirement is religious in nature, that she called the religious observance or practice to her employer’s attention, and that the religious observance or practice was the basis for her discharge or other discriminatory treatment.”  Once a prima facie case is established, the burden shifts to the employer to make a reasonable accommodation for the religious practice or show that any reasonable accommodation would result in an undue hardship, which requires more than a de minimis showing from the employer.  In NorthShore Health, NorthShore conceded that the plaintiffs could establish a prima facie case of discrimination and argued instead that exempting the plaintiffs from the vaccine requirement would impose an undue hardship because of the “greater risk of transmission of and severe illness from COVID-19 with unvaccinated employees” would result in “additional costs and liability from the transmission of COVID-19.”  

     The court determined, however, that NorthShore had not done everything it could to reasonably accommodate the plaintiffs.  The court noted that NorthShore initially told its employees that it would recognize religious exemptions by allowing those with religious objections to perform their job duties while wearing masks and being tested regularly.  This was NorthShore’s practice for nearly one year since the vaccines became available.  Moreover, NorthShore showed a willingness to accept regular testing as an accommodation as recently as September 2021.  The court further found that NorthShore presented little justification for its sudden change in position (i.e., mandating vaccines).  Moreover, the court noted that patients, visitors, and employees of other hospital groups that provide medical or religious accommodations to their employees were still allowed to enter NorthShore facilities under the new policy.  The court also noted that NorthShore relied in part on the new workplace rule regarding COVID-19 vaccines issued by the Occupational Safety and Health Administration (“OSHA”) (see case summary upholding rule here), but the OSHA rule allowed the option of masking and testing.  As a result, the court was skeptical that NorthShore ultimately would satisfy its burden of establishing an undue hardship after discovery was completed and, thus, the plaintiffs were likely to prevail on the merits.

     When turning to the issue of irreparable harm, the court noted that “[p]reliminary injunctive relief is uncommon in the context of employment discrimination actions under Title VII . . . because, in the ordinary case, money damages are available as compensation for the loss of income and other employment-related harms.”  To this end, the court further noted that Title VII provides for compensatory damages to prevailing plaintiffs, plus uncapped amounts of back pay and front pay, which makes “demonstrating the irreparable nature of the harm from an adverse employment action . . . difficult.”  The court bolstered its conclusion by agreeing with other courts that rejected the “Impossible Choice” theory – the choice between getting vaccinated and enduring unpaid leave – and found such a choice did not constitute irreparable harm.  Upon concluding that the plaintiffs would not be irreparably harmed, the court ended its preliminary injunction analysis because establishing irreparable harm is a prerequisite for such injunctive relief.

     The court then proceeded to rule that the plaintiffs could proceed pseudonymously (under a fictitious name, i.e., Jane Doe) to protect against the disclosure of their identities and it denied the plaintiffs’ motion for provisional class certification without prejudice because it was premature to make such a ruling at this stage, particularly with the court denying the plaintiffs’ motion for a preliminary injunction.

     The court’s decision in NorthShore Health is significant in multiple respects.  First, as COVID-19 continues to spread in record numbers across the country, rules regarding vaccine mandates (either by the government or private employers) continue to be met with much controversy.  Businesses are grappling with policies to protect their workforces and third parties, and some indecision or inconsistency in how to implement safe practices in the workplace can potentially undermine a subsequent policy shift to a vaccine mandate, as evidenced by the court’s decision in NorthShore Health.  Second, even if employees refuse to get vaccinated on religious objection grounds and are likely to prevail in litigation claiming religious discrimination under Title VII, employers likely will not be required to suspend the termination of those employees’ employment, because courts so far tend to find that any discrimination suffered by the employees can be remedied monetarily later (which, as a practical matter, may put some pressure on employees either to look for other jobs or get vaccinated because they may not want to wait to be made whole after going through a lengthy litigation process).  Third, the plaintiffs in NorthShore Health have demonstrated a path forward for those individuals who seek a religious exemption from a workplace vaccine mandate.