Matthew Backes, a former employee of Aria Resort & Casino (“Aria”), filed suit after he was fired for refusing to get a COVID-19 vaccination, arguing he had sincere religious objections. He had attempted to obtain an exemption to Aria’s vaccine mandate. Aria denied it on grounds it would create an undue hardship, and the employee was subsequently fired. In response, he filed suit alleging religious discrimination and retaliation on the part of his former employer.

Title VII litigation by employees terminated after they refused to be vaccinated for COVID-19 is an evolving area of law. At the time of writing, the case has not been resolved. However, Aria could have a winning argument if it can successfully show that accommodating Mr. Backes’ religious exemption request would constitute an undue hardship to itself or its employees.

Facts

To protect its employees and guests from COVID-19, Aria mandated all salaried employees be vaccinated by October 15, 2021. The plaintiff submitted a religious exemption in accordance with Aria’s procedures. In his exemption request, he based his refusal to get vaccinated on his faith as a Christian, stating he believed the COVID-19 vaccine “contained aborted fetal cells[.]”[i] Aria denied the exemption.

Because Aria employed the plaintiff as a Beverage Manager, he had frequent in-person interactions with other employees and guests. Aria denied the religious exemption because not being vaccinated “would interfere with [the plaintiff’s] guest and employee interactions”[ii] and thereby create an undue hardship. Though his exemption request was denied, the plaintiff continued to refuse vaccination. After Aria’s vaccination deadline passed, Aria terminated the plaintiff’s employment.

Status of the Lawsuit 

In his complaint, the plaintiff alleged Aria treated him differently than similarly situated employees and that he belongs to a protected class.[iii] He based his disparate treatment claim on the fact that Aria split employees claiming religious exemptions into a separate class because of their religious beliefs. Specifically, the plaintiff alleged Aria discriminated on the basis of religion in violation of Title VII, 42 U.S.C § 2000e, et seq. and NRS 613.330,[iv] and that Aria committed retaliation in violation of those same statutes. Moreover, he maintained Aria could have provided reasonable accommodations to him by allowing him to undergo COVID-19 tests while at work: Aria had onsite COVID-19 testing capabilities.

On March 6, 2023, Aria moved to dismiss the plaintiff’s retaliation claims.[v] Aria asserted the retaliation claims were factually groundless. Aria made it clear that failure to comply with the vaccine mandate or obtain an exemption from it would result in termination from Aria.

Takeaways

This lawsuit is ongoing. Since the COVID-19 pandemic and its consequences still present a novel area of litigation, the resolution of this case is still up in the air. Even when a prima facie showing of religious discrimination may be made by a plaintiff, there is still a potential legal basis for an employer to overcome plaintiff’s showing by providing evidence that allowing for religious exemptions to COVID-19 vaccination mandates could create an undue burden.[vi]

Employers should keep an eye on this case. Depending on how this litigation develops, it may provide a testing ground for the development of Title VII religious discrimination theories and potential defenses. If the plaintiff is successful, employers may want to brace for an onslaught of similar suits. If Aria prevails, employers should remain aware of any similar issues with employees, but there will at least be precedent available that will help employers if a suit arises.

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Sources

[i] Plaintiff’s Complaint at ¶17.

[ii] Plaintiff’s Complaint at ¶19.

[iii] Plaintiff’s Complaint at ¶38.

[iv] Nev. Rev. Stat. Ann. § 613.330 (West) provides protections against religious discrimination as follows:

[It] is an unlawful employment practice for an employer:

(a) To fail or refuse to hire or to discharge any person, or otherwise to discriminate against any person with respect to the person’s compensation, terms, conditions or privileges of employment, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin;

(b) To limit, segregate or classify an employee in a way which would deprive or tend to deprive the employee of employment opportunities or otherwise adversely affect his or her status as an employee, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin[.]

[v]Defendant Aria Resort & Casino, LLC’s Motion to Dismiss Counts II and IV of Plaintiff’s Complaint. In filing the now-pending Motion to Dismiss, Aria asserts that the timeframe to respond to the entire complaint is suspended. See footnote no. 1.

[vi] Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004).