Back in September, a divided Ninth Circuit panel ruled (in Detwiler v. Mid-Columbia Medical Center) that a Title VII plaintiff did not adequately plead that she had suffered religious discrimination. The panel acknowledged that it was adopting a more restrictive pleading standard than “several” other circuit courts had adopted. In an order today, the Ninth Circuit, over the dissent of eight judges, denied en banc review of that ruling.
Some brief background: Back in the midst of the covid epidemic, the plaintiff, Sherry Detwiler, requested that her employer exempt her from a requirement that she submit to weekly antigen testing that involved inserting into her nostril a cotton swab dipped in ethylene oxide. As the panel majority states, Detwiler pleaded in her complaint that she “declined to submit to nasal swab testing, at least in part, due to medical and/or scientific judgment”—namely, that ethylene oxide is a carcinogen. But she combined that medical/scientific judgment with her religious belief that “her body is a temple of the Holy Spirit” and that she should not contaminate it with harmful substances.
The panel majority ruled that a plaintiff seeking a religious exemption must plead a connection between the requested exemption and “a truly religious principle.” It held that Detwiler’s “purely secular” judgment that ethylene oxide is carcinogenic “offers the sole basis of her objection” and “has no relationship with her religious beliefs.”
In his panel dissent, Judge Lawrence VanDyke explained that the majority’s test was unsound and unworkable:
[It] will necessarily embroil courts in resolving intractable questions about how much of a claimant’s religiously motivated objection is “truly religious,” versus how much of the objection derives from an erroneous “personal judgment based on science.” Effectively all religiously motivated actions could be characterized as based on some “general religious principle” combined with some view of how the world factually (or “scientifically,” or “medically,” or “actually”—pick your preferred adverb) works.
The en banc dissents today, written by Judge Danielle Forrest and Judge Eric Tung (and joined—one or the other or both—by VanDyke and five other judges) make similar points.
I’ll limit myself to a few observations:
1. As the dissents point out, at issue here is the threshold question whether a plaintiff has adequately pleaded a Title VII complaint, not whether the plaintiff should win. Under Title VII, an employer does not need to accommodate a religious belief if doing so would impose an undue hardship. (Detwiler proposed either to submit to saliva testing or to work remotely full-time.)
The panel majority was clearly concerned that employees might invoke religious claims as “a blanket privilege and a limitless excuse for avoiding all unwanted obligations.” But that concern provides no basis for contorting pleading doctrine. (And, as VanDyke points out, a claimant could easily satisfy the majority’s standard by simply asserting “God told me not to have a nasal swab.”)
2. When I first starting reading the opinions, I assumed that there was something unsound or idiosyncratic about Detwiler’s judgment that ethylene oxide is carcinogenic. But the majority doesn’t contest her judgment, and my own quick research indicates that her judgment is well founded. For example, the National Cancer Institute states:
Lymphoma and leukemia are the cancers most frequently reported to be associated with occupational exposure to ethylene oxide. Stomach and breast cancers may also be associated with ethylene oxide exposure.
3. The panel majority’s own account of Detwiler’s complaint indicates that she pleaded that her objection to the nasal swab, far from being “purely secular,” combined her understanding that ethylene oxide is a carcinogen with her religious belief that she should not expose her body, as “a temple of the Holy Spirit,” to harmful substances.
Let’s see if the Supreme Court grants certiorari in this case to resolve the conflict among the circuits that the Ninth Circuit ruling has created.