Defining “Sincerely Held Religious Beliefs” That Might Excuse Mandatory COVID-19 Vaccination?
Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in most religious discrimination lawsuits. With both the EEOC and DFEH guidance requiring employers to accommodate an employee who has a sincerely held religious belief that prevents an employee from receiving any of the COVID-19 vaccinations, the issue of what is a “sincerely held religious belief” has become more important in employment law. This is particularly true for those employers that decide to mandate the COVID-19 vaccination as a condition of employment or condition of receiving certain employment benefits.
Challenging the Sincerity of a Religious Belief
Whether a belief is “sincerely held” is generally an issue of individual credibility. While evidence proving that an employee acted inconsistently with his alleged sincerely held religious belief is relevant to determine whether the belief is sincere, this evidence is difficult to obtain in most cases, and often can be overcome, as sincerely held religious beliefs are not static and often change over time. See, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (en banc) (finding that a Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief, even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person, but evidence showed that the recent birth of her son and the death of her father strengthened her religious beliefs); EEOC v. IBP, Inc., 824 F. Supp. 147, 151 (C.D. Ill. 1993) (holding that Seventh-day Adventist employee’s previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath). The law is clear that a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance or had never openly demonstrated those beliefs in the past.
Sincerely Held Religious Beliefs Do Not Need to Be Express Tenets of a Religion in Order to Require Accommodation
In religious discrimination cases, employers often believe that the burden is on the employee to prove that the sincerely held religious practice (for example not getting vaccinated) is an express requirement of the employee’s religion, and absent proof of such requirement, no accommodation is necessary. However, the definition of sincerely held religious belief is not necessarily tied to express religious requirements.
Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001), is instructive on this point. In this Seventh Circuit case, the Court of Appeals held that an employer could not stop an employee from using the phrase “Have a Blessed Day” as a greeting in her work emails, even if the use of the phrase was not expressly required by her religion (Christian Methodist Episcopal) and was unique to her.
In the federal circuit covering California, the Ninth Circuit Court of Appeals reached a similar conclusion in Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993), the Court held that the law “protects more than the observance of Sabbath or practices specifically mandated by an employee's religion.” The Ninth Circuit explained the rationale for this conclusion:
To restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, . . . but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion. . . . [S]uch a judicial determination [would] be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S 67 (1953) ‘[I]t is no business of courts to say . . . what is a religious practice or activity.’
That being said, at least under California law, the belief must have at least some religious foundation in order for it to qualify as a sincerely held religious belief that is required to be accommodated. See generally Friedman v. Southern California Permanente Medical Group, 102 Cal. App. 4th 39 (2002) (holding that employee’s veganism is not a religious belief).
California Case Law on Religious Belief
In Smith v. Fair Employment & Housing Comm., 12 Cal. 4th 1143, 1166 (1996), the California Supreme Court addressed the definition of “religious” belief under California law. In her plurality opinion, Associate Justice Kathryn Mickle Werdegar, observed that a religious belief is something other than "a philosophy or a way of life." She further explained that "'[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’” In Fellowship of Humanity v. Co. Alameda, 153 Cal. App. 2d 673 (1957), the Court of Appeal held that a religious belief does not necessarily require a connection to a belief in a god or supreme being, citing to Buddhism and other religions.
The Friedman case is the primary California case addressing the definition of religious belief under state law and is quite extensive. It examined these California decisions, and others, and concluded that:
- A belief in a supreme being is not required to be a religious belief.
- Something more than a philosophy or way of life is required for a belief to be considered a “religious” belief or creed.
- Among the factors to be considered are whether the belief occupies in a person's life a plane parallel to that of a supreme being in recognized religions and whether it addresses ultimate concerns thereby filling a void in the individual's life.
- California court can and should look to federal authority on this issue (and the Friedman decision spent many pages analyzing federal decisions interpreting “religious belief.”
In Freidman, the plaintiff asserted that as a strict vegan, he “fervently believes that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans, and that such use is a violation of natural law.” Id. at 44. This belief system guides the way that he lives his life and he contends that his beliefs are spiritual in nature and set a course for his entire way of life. Id.
In analyzing whether the plaintiff’s veganism constituted a sincerely held religious belief under California law, the Friedman decision held that the California definition of religious belief is actually significantly narrower than that under federal law. The Court of Appeal first held that “purely moral or ethical beliefs that are held with the strength of religious convictions may not qualify for protection” under California law. Id. at 67. The Court found that the California regulations require that “the belief, observance, or practice occupy a place in the employee's life of importance parallel to that of traditionally recognized religions” in order to be a religious belief under the Fair Employment and Housing Act. Id. In doing so, the Court noted that this ‘importance parallel to that of traditionally recognized religions’ requirement is not contained under federal law. Id.
In making the determination of whether not a person’s beliefs are based on religion and therefore “religious” under this standard, the Friedman decision found that three requirements must be met:
- A religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.
- A religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.
- A religion often can be recognized by the presence of certain formal and external signs.
Utilizing this standard to evaluate plaintiff Friedman’s veganism, the Court of Appeal concluded that:
- Plaintiff’s belief "that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals even for food, clothing and the testing of product safety for humans" does not address fundamental or ultimate questions. The Court found that it does not speak to the meaning of human existence; the purpose of life; theories of humankind's nature or its place in the universe; matters of human life and death; or the exercise of faith. The Court held that there is no spiritual or otherworldly component to plaintiff's beliefs and that while veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.
- Second, the Court of Appeal found that while plaintiff's belief system governs his behavior in wide-ranging respects, including the food he eats, the clothes he wears, and the products he uses, it is not sufficiently comprehensive in nature to fall within the provisions of regulation 7293.1. Plaintiff does not assert that his belief system derives from a power or being or faith to which all else is subordinate or upon which all else depends
- The Court of Appeal also found that “though not determinative, no formal or external signs of a religion are present. There are no teachers or leaders; services or ceremonies; structure or organization; orders of worship or articles of faith; or holidays.” Id. at 70.
Based on these conclusions, the Court of Appeal found that Friedman’s beliefs about veganism, while both very strong and obviously sincerely held, were not worthy of accommodation as a sincerely held religious belief or creed, at least under California law. The Court found that “plaintiff's veganism is a personal philosophy, albeit shared by many others, and a way of life” but was not based on religion and was therefore not protected. The Court cautioned against concluding that veganism is never protected and hinted that a vegan lifestyle that unlike Friedman’s, results from a religious belief, can be protected as a sincerely held religious belief/creed under California law.
Vanderbilt University recently published an excellent and interesting article on all the major religions and their views about vaccinations. The article indicates that virtually all religions commonly practiced in the United States do not mandate that their adherents avoid vaccination. Thus, it may be tempting for employers to simply (a) review this resource, or some similar resource, (b) ask the employee what religion he subscribes to that forms the basis of his refusal to vaccinate and (c) then tell the employee that his or her anti-vaccination views are not “religiously based.” However, as this article indicates, the inquiry is much more complicated and nuanced than that.
Any employer faced with a determination of whether or not an employee holds sincerely held religious beliefs that prohibit the employee from being vaccinated for COVID-19 would be wise to seek legal advice from an experienced employment attorney, who is familiar with this area of the law.