An excerpt from the long opinion today in Lewis-Williams v. S.F. Bay Area Rapid Transit Dist., decided by Judge Ryan Nelson, joined by Judges Johnnie Rawlinson and Bridget Bade:

San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict of $7,824,580 to six former employees for Title VII violations for failure to accommodate their sincere religious objections to a COVID-19 vaccine mandate. Because sufficient evidence supports the jury's verdict, we affirm….

Title VII requires employers to "reasonably accommodate" religious objectors' sincere requests for exemptions from neutral job requirements that conflict with the objectors' religion, unless the employer can show that the exemption would create "undue hardship." That's Congress's choice, made in 1972, and in my view there are good arguments against mandating such religious exemptions from neutral rules, but Congress did indeed so mandate. And here, the court held, that the jury was entitled to reject the employer's undue hardship argument:

It is undisputed that the Six Former Employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The propriety of [setting aside the verdict as inconsistent with the law] therefore turns on whether BART carried its burden of showing that Plaintiffs' religious objections could not be accommodated without undue hardship.

BART's argument … proceeds in two steps. First, BART argues that unrebutted testimony established that (1) public health guidance at the time advised that vaccination was the most effective measure for preventing the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unacceptable from a safety and operational standpoint for unvaccinated employees to perform in-person work, and (3) its reliance on such guidance is dispositive for purposes of the undue-hardship determination because a religious accommodation that imposes an increased safety risk for others constitutes an undue hardship as a matter of law. Second, BART argues that remote work and unpaid leave—the only accommodations as safe as vaccination—were not reasonable accommodations as a matter of law because the only rational conclusion based on the evidence introduced at trial was that Plaintiffs could not perform the essential duties of their jobs remotely and any unpaid leave would have been indefinite.

For reasons explained below, we conclude that BART is not entitled to [set aside the verdict]. To prevail on its "undue hardship" defense, BART had to show that the alternatives to vaccination would be not only less safe, but less safe by a "substantial," "excessive," or "unjustifiable" margin….

BART argues that any increase in safety risk resulting from an accommodation is an undue hardship. This argument conflicts with the Supreme Court's holding in Groff that an accommodation does not impose an "undue hardship" unless the burdens would be "substantial," "excessive," or "unjustifiable." Common sense dictates that safety risks, like any other category of risk, are capable of justification…. "Because few, if any, activities in life are risk free, [we] do not ask whether a risk exists, but whether it is significant." … Accordingly, an employer is not absolved of its burden of proving that an accommodation is unreasonable by merely showing that the accommodation has safety implications. Rather, employers are ordinarily entitled to rely on the views of public health authorities, along with the best "objective, scientific information available" at the time, when making accommodation decisions.

That brings us to the next problem with BART's argument: the public health guidance that BART relied on is not in the record. BART likewise did not call any of the infectious disease experts or public health officials with whom BART's pandemic task force consulted when formulating its vaccination policy. Instead, BART put forward the testimony of two after-the-fact litigation experts—Dr. Joseph Lewnard, an infectious disease epidemiologist, and Dr. Nancy McClellan, an industrial hygienist—to establish the state of the public health guidance and the risks BART would be taking by allowing unvaccinated employees to work in person.

Contrary to BART's contentions, the jury was not required to accept BART's expert, non-percipient witness testimony as conclusive evidence of the scientific information that drove BART's decision-making. Moreover, "[e]xpert testimony … is not conclusive upon the trier of fact, even though unimpeached and uncontradicted, since the trier may apply his own experience or knowledge in determining how far to follow the expressed opinion." The expert testimony thus did not establish that in-person alternatives to BART's vaccine requirement—masking, social distancing, and other such measures—would be unreasonable accommodations as a matter of law….

The above conclusion, however, is not necessarily fatal to BART's argument. Even if in-person alternatives to vaccination are not per se unreasonable accommodations in the context of BART's business, they may still impose an undue hardship considering either the nature of that business, the religious objector's work duties, or some other factor (or combination of factors).

Our decisions in Petersen and Williams are illustrative. In Petersen, eight firefighters sued their employer for denying them religious accommodations for a COVID-19 vaccine mandate. Because the fire department's business was to provide the public with "emergency, even life-saving, services" and undisputed evidence established that "firefighters work in group settings, interfacing constantly with coworkers and the public, both inside and outdoors" and that the plaintiffs often did not abide by masking and social distancing guidelines, we held that "testing, masking, and social distancing in lieu of vaccination" was not a reasonable accommodation in light of the substantial burdens that would be imposed on the fire department.

Defendants in Petersen also risked serious financial and operational hardships likely to be incurred had they accommodated the firefighters (including potentially losing almost a quarter of their firefighting force to illness and losing a $400,000 annual contract). {By contrast, BART had received millions of dollars in federal COVID-19 relief funds. The jury could reasonably infer that BART used those funds to ensure that it did not engage in mass layoffs during the pandemic. The employees who lost their jobs were the religious dissenters BART failed to accommodate. Thus, a reasonable jury could also have inferred that BART had the resources and excess workforce to accommodate the Six Former Employees without suffering an undue hardship.}

In Williams, nine healthcare professionals sued their employer, "a regional healthcare system that operates eight hospitals throughout the Willamette Valley," on the same basis—failure to provide accommodations for a COVID-19 vaccine mandate. And in holding that alternative measures to vaccination would impose an "undue hardship" on the conduct of the defendant's business, we highlighted that the defendant was in the "business of providing safe and effective medical care to the public," that unvaccinated "frontline [hospital] workers" such as the plaintiffs "faced a unique risk of infection," and that the nature of the plaintiffs' work duties "necessitated close contact with either patients or staff" and therefore created an outsized risk of causing staffing issues and undermining the efficacy of patient care.

Those factors are not present here. Unlike the defendants in Petersen and Williams, the focus of BART's business is not health and safety, but transportation. And unlike the plaintiffs in those cases, the roles occupied by the Six Former Employees before their termination did not require them to be in close, frequent contact with the public or most coworkers:

• Tonya Lewis-Williams was a "utility worker," responsible for "clean[ing] up the debris off the platform, the trains, some offices," and other such places. Lewis-Williams testified that "[m]ost of the time" she was by herself and not in contact with passengers or her co-workers.


• Bradford Mitchell was a "rolling stock component maintenance superintendent," responsible for supervising the maintenance of train cars at the Richmond shop. He testified that he had no contact with the public and minimal contact with other BART employees—any necessary in-person meetings with shop employees were conducted in "a large open bay area" with a 40-foot-high ceiling and floor space sufficient to fit eight train cars, and after the pandemic began, meetings took place "[v]ery seldom[ly]."


• Rosalind Parker was a "customer service clerk," responsible for selling tickets, bike locker rentals, and company store items, among other things. In her job, she worked alongside four co-workers and interacted with the public from behind a bullet-proof window. Her job required no "direct contact" with customers—money, tickets, and other such items were collected through a slot, and communication with the customers occurred through a microphone. After the pandemic started, BART installed large polyglass partitions that separated her workspace from the other three clerks.


• Szu-Cheng Sun was a "computer electronic technician," responsible for "install[ing], maintain[ing], and repair[ing] computer-related equipment." Sun testified that "90 percent of [his] work could be done alone or remotely," that he had "no interaction with patrons or riders at all," and that only in "rare instances" presenting "[s]afety concerns" would he have to work alongside a coworker.


• Raymond Lockett was an "operations supervisor liaison," responsible for meeting and escorting contractors around BART facilities (as well as BART employees who needed access to a facility they did not ordinarily have access to) and ensuring that such individuals did not create any safety concerns or other liabilities for BART. Lockett testified that his work was "primarily outside" and generally at a safe distance from other individuals.


• Ryan Rivera was a "[s]torekeeper," responsible for making requisitions and keeping inventory, among other duties. Rivera testified that, as a "senior lead," he was relieved of all "physical duties" associated with his position and could have worked alone in his isolated office, which had "its own ventilation system with windows and filters."

Nor does BART point to any trial evidence suggesting that the Six Former Employees would have been unable or unwilling to wear a mask or take other appropriate measures aimed at preventing transmission. Accordingly, the jury could have reasonably concluded that the burdens imposed by accommodating the Six Former Employees' religious objections would not have been substantial, excessive, or unjustifiable.

We are especially hesitant to upend a jury verdict that rests on an "undue hardship" determination. The "undue hardship" determination is a "fact-specific inquiry" that "takes into account all relevant factors in the case at hand." Fact-specific determinations are generally best suited for jury resolution. "The jury, after all, represents the conscience of the community."

Given these features of the "undue hardship" determination, only in cases—like Petersen and Williams—where the excessiveness of the burden imposed "is so obvious that reasonable minds could not differ" is this question "appropriately resolved as a matter of law." This is not one of those cases. And the jury resolved those factual disputes reasonably, rendering a verdict for the Six Former Employees….

Judge Ryan Nelson also had a separate concurrence generally discussing the Free Exercise Clause; you can see it here.

Gage S. Fender, Matthew McReynolds, and Kevin T. Snider (Pacific Justice Institute) and Susan J. Clouthier and Gage S. Fender (Clouthier Law PLLC) represent plaintiffs.

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