[00:00:01] Speaker 02:
Good morning. Our first case on calendar is case number 24-4852, Brittany K. McDonald versus Oregon Health and Science University et al. Council may approach.

[00:00:26] Speaker 03:
Judge Matsumoto, Judge Tung, Judge Hawkins, may it please this honorable court, I'd like to reserve three minutes for rebuttal time.

[00:00:35] Speaker 03:
May I proceed? Yes.

[00:00:37] Speaker 03:
A government employer's policy targeting religious beliefs as such is never permissible. Never means not even during a pandemic. Although the Oregon Health Authority's 2021 vaccine mandate for COVID vaccine mandate for healthcare workers allowed for religious exceptions, OHSU, acting through its officials, made clear that only employees with the so-called right beliefs would qualify.

[00:01:04] Speaker 00:
Where did they state that, sir?

[00:01:04] Speaker 03:
They stated that at 2ER 551, 552, as well as 54, or excuse me, I take that back, 2ER 125 and 26 and 139. They also stated that at 3ER 549 and 551, 52.

[00:01:24] Speaker 00:
Would you say they described it as right beliefs, or did they just describe it would not qualify as a religious exemption? Isn't that what they did?

[00:01:34] Speaker 03:
They didn't say which beliefs were the right ones. They did come out with a list of which ones were the wrong ones. Chief among those, Your Honor, were objections based on the COVID vaccine's connection to abortion, which they denigrated specifically as personal moral choices and or conscientious objections, rather than a tenant of a religious faith. And OHSU, acting through its officials, overstepped its constitutional bounds because that is a constitutional no-no.

[00:02:04] Speaker 04:
Where did your client work?

[00:02:06] Speaker 03:
My client worked in the mother-baby unit of OHSU.

[00:02:11] Speaker 04:
Would you describe that as a vulnerable population?

[00:02:16] Speaker 03:
I would, Your Honor, but that doesn't negate the fact... Would it be unreasonable for the hospital...

[00:02:21] Speaker 04:
to determine it was a vulnerable population?

[00:02:25] Speaker 03:
I don't think it was unreasonable to determine it was a vulnerable population, but the issue here is it wasn't her position that disqualified her. It was her beliefs, and that was stated up front. And if you look at 2ER-139 and 3ER-549.

[00:02:39] Speaker 04:
She wanted to work in a vulnerable population that included mothers and babies, and she wanted to do it how? Masked?

[00:02:50] Speaker 03:
uh, uh, with, uh, PPE and, or excuse me, personal, uh, protective equipment, uh, as well as, uh, uh, regular COVID testing as she had done throughout the pandemic.

[00:02:59] Speaker 04:
And isn't it factually correct that the hospital was understaffed in that particular area?

[00:03:08] Speaker 03:
Yes, which is all the more reason why they could have, uh, could and should have accommodated her. Uh, and, and I believe if you look, uh, looking at this, uh, the facts of this case in the light, most favorable to, uh, Ms. McDonald, as this court must, for purposes of both the OHSU's motion to dismiss her 1983 claim as well as its motion for summary judgment on her Title VII claim, that the OHA specifically allowed for religious exceptions because it recognized that there were a number of employees who would seek religious exceptions and hospitals which were already overflowing with patients and understaffed would be would find themselves even more so overworked and understaffed.

[00:03:51] Speaker 02:
Counsel, you're bringing two separate claims, right? You have a constitutional free exercise claim. That is correct. Pursuant to Section 1983. And you also separately have a Title VII reasonable accommodation claim. That is correct. Okay. And the qualified immunity argument pertains to the constitutional claim, correct?

[00:04:14] Speaker 03:
That is correct. And I believe the OHSU official should be stripped of – qualified immunity in this circumstance because any reasonable person in the OHSU official stead would have known that they cannot show hostility toward religious beliefs.

[00:04:28] Speaker 03:
You know, if you look at Dodge v. Evergreen School District, it says that the contours of the right need to be made clear. And if you look at my brief, I outlined four areas where the contours exist. One of those is there's a number of cases in which the Supreme Court recognized that Opposition to abortion can be and often is religious in nature.

[00:04:51] Speaker 03:
There was another set of cases, most of them involving unemployment benefits, which says that the government cannot act as an arbiter of scriptural interpretation, saying, you know, they can't determine what is a religious belief and what isn't, which is what OHSU did here. The third set concerned hostility toward religion. We're talking about Lukumi and or Church of Lukumi Babalu I and Masterpiece Cake Shop versus Colorado Civil Rights Commission. And lastly, there are cases involving public health crisis, including the COVID pandemic.

[00:05:21] Speaker 03:
And the one case that I consider most instructive there is one this court has already applied in other cases, which is Roman Catholic Diocese of Cuomo v. Diocese or Roman Catholic Diocese of Brooklyn v. Cuomo.

[00:05:36] Speaker 02:
Assuming we stipulate for a moment that we agree with you there, that there's a clearly established right to not be discriminated against in that manner. You may still lose on your Title VII claim, right, if the state is able to show that it would impose an undue hardship on them in order to accommodate your client.

[00:05:59] Speaker 03:
Well, Your Honor, if they can show it's an undue hardship, yes, but I do believe that there is a triable issue of material fact on that point. The Supreme Court said in Graffi de Joy that a hardship based on hostility toward a religion or a religious practice or to a religious accommodation cannot be considered undue.

[00:06:17] Speaker 00:
But wasn't it based on scientific evidence of the virulent nature of the Delta variant, the fact that it was more transmissible, the fact that people got sicker and had worse outcomes, and this was in the height of the pandemic. So whether it's under an undue hardship, which you said, yes, they were understaffed, people were falling ill, both patients and staff, and an unvaccinated population.

[00:06:46] Speaker 00:
nurse who had hands-on contact with vulnerable babies, mothers, and others who are immune compromised, that that was too much of a hardship to risk, further staffing shortages, and bad patient outcomes.

[00:07:02] Speaker 03:
That was a post hoc assertion, okay?

[00:07:05] Speaker 03:
That doesn't negate the fact of the assertion that OHSU made up front. And even when it, you know, I again point the court, to 2ER139 and 3ER549, where it said it was her position, or excuse me, not her position, it was her beliefs, not her position, that disqualified her. And OHSU asserted after the fact. And, you know, I believe that raises a tribal issue of material fact concerning what the real hardship was here, whether that was protecting the people in the mother-baby unit, or whether it was accommodating her specific beliefs, which, you know, is a, which, if they targeted her specific beliefs and disqualified her up front based on that.

[00:07:47] Speaker 03:
And so I do believe there is a tribal issue of material fact on that point.

[00:07:51] Speaker 02:
But aren't you conflating two steps of the Title VII analysis? The state has already conceded for purposes of Title VII that there was a prima facie case of a religious burden, and therefore the inquiry is focused on the undue hardship. So we're in undue hardship now. And going to Judge Matsumoto's point, hasn't the state provided evidence A lot of evidence, and the district court found that the evidence you wanted to proffer was inadmissible.

[00:08:19] Speaker 03:
Well, I don't know about inadmissible. I would say that there is a tribal issue. In fact, it concerns credibility. It concerns credibility. They shouldn't be given a pass here just because they claim to be protecting the public.

[00:08:32] Speaker 03:
I refer this court to Bragdon v. Abbott, which is a Supreme Court case from the late 90s. It involved a dentist who refused to provide – treatment for HIV positive patients. You know, he said he had a reasonable good faith belief based on info from the entities from the American Dental Association, as well as the CDC, that it was a highly contagious disease. He didn't want to have it spread out his office, understandably. And the Supreme Court said, no, that doesn't necessarily absolve him of liability.

[00:09:06] Speaker 03:
And it also said that even though he's a dentist, You know, he shouldn't be given any deference on that point, and neither should OHSU here.

[00:09:17] Speaker 03:
So, I mean, that's just very much the, so, I mean, again, going back to Groff, Groff said that, you know, any hardship based on, you know, animosity toward a specific belief cannot be considered undue. You know, if it was, you know, if animosity toward a certain religious belief would be what constituted offense to Title VII, then Title VII would be at war with itself.

[00:09:48] Speaker 03:
I mean, the whole point of it is to, and this court has recognized that very wisely, I might add, that the public's interest in protecting religious liberty was equally compelling to the public interest in stemming the tide of the pandemic. And I ask that the Supreme Court or excuse me, that this court rule likewise here.

[00:10:14] Speaker 02:
Counsel, you didn't bring a Title seven discrimination claim, right?

[00:10:22] Speaker 03:
By discrimination claim, you're talking disparate treatment, intentional discrimination. OK, you're talking about something with different elements than a failure to accommodate claim.

[00:10:34] Speaker 02:
Right.

[00:10:34] Speaker 03:
Separate from the failure to accommodate claims. That is correct. I think at one point I did want to try and amend my complaint, you know, but Judge Emmergut kind of made clear that that wouldn't happen. So I wound up withdrawing my... So that's not before us. It's not before us.

[00:10:51] Speaker 04:
However, I would like to point to... That's a simple question to answer, counsel. It's not before us.

[00:10:58] Speaker 03:
It is not before us. There is, however, a case that I would like to bring your attention to. which is EEOC v. Abercrombie & Fitch Stores, which it says that a failure to accommodate claim is a disparate treatment claim.

[00:11:11] Speaker 03:
So, I mean, the Supreme Court recognizes two types of claims under Title VII, which are disparate treatment and disparate impact. And, you know, a failure to accommodate claim falls into the former category of disparate treatment. And because of that, the motive of the employer matters.

[00:11:33] Speaker 03:
You know, even for even though it might not be an element of a failure to accommodate claim, it's still relevant to the analysis.

[00:11:44] Speaker 03:
So if you don't have any further questions, I'd be happy to, you know, use my remaining time and tack it on to my rebuttal, if that's OK with the court. Yes. Thank you, counsel. Welcome.

[00:12:05] Speaker 01:
Good morning, Your Honors, and may it please the Court. I'm Whitney Brown on behalf of OHSU.

[00:12:10] Speaker 01:
In the middle of a global pandemic, OHSU enacted a vaccination policy requiring all employees who work in person to be vaccinated for COVID-19 unless they received a medical or religious exception. It did so on the basis that allowing employees to continue to work in person while unvaccinated would pose untenable health and safety risks and operational costs.

[00:12:33] Speaker 01:
The issue on appeal, as your honors have indicated this morning, is very narrow. Did the district court decide, correctly decide, that evidence of intentional discrimination has no bearing on the limited question of undue hardship? The answer to that question is no. There is, of course, also a qualified immunity issue. I do not intend to address that issue unless the court has specific questions about it.

[00:12:56] Speaker 02:
I do have specific questions about it.

[00:13:00] Speaker 02:
The policy, as I see it in the record, and I'm on ER 551, council appointed to different ER sites. It may be redundant, but the policy states that examples of beliefs that do not qualify for a religious exception include an objection to the vaccine on the basis of fetal cell concerns.

[00:13:22] Speaker 02:
So the plaintiff here has alleged that the use of fetal cells derived from abortive fetuses, uh, poses a religious problem for her. She's objecting to that on a religious basis.

[00:13:38] Speaker 02:
But the policy says we're not treating that as a religious objection at all. How is that not a violation of a clearly established right?

[00:13:46] Speaker 01:
Yeah, a couple of points here, Your Honor. To begin, the record on this point is very thin. All we have is the language of the policy. And the reason that the record is thin is because Ms. McDonald did not raise an intentional discrimination claim. She didn't challenge or she didn't indicate that we needed to evince evidence of how religious exceptions were treated in practice. So we don't actually know how the policy was applied. I see the language that Your Honor is referring to, and I understand where Your Honor's concern comes from, certainly.

[00:14:21] Speaker 01:
But what the record also reflects is that exception requests were given individualized assessment And I think the point that I want your honors to realize is that there were a lot of requests coming in at the same time. And OHSU, I think, reasonably had concerns about whether all of them were motivated by bona fide religious belief or instead by sort of personal convictions or frankly by misinformation. So the language of this policy, perhaps imperfectly, was trying to be educational and informative and transparent that a bare statement to the effect that you know, something about fetal cells or that someone had a personal revelation from God without more wouldn't qualify.

[00:15:04] Speaker 00:
Do they have evidence that according to their policy, no fetal tissues or cells were contained in any of the vaccines currently available under the FDA approval? And also, did they present evidence that other cell lines were created and used in sort of over-the-counter type medications like Tylenol, Advil, aspirin, Claritin, Benadryl, et cetera.

[00:15:36] Speaker 00:
That was part of the OHSU policy, explaining their views about the belief that one wouldn't want to use fetal cells. And I think first they try to refute that there are fetal cells in the current MNRA regimen. And then they go on to say, the extent some of these other cell lines were used, they are in common over-the-counter drugs that had been available for years.

[00:16:04] Speaker 01:
That's correct, Your Honor. And we didn't challenge, for purposes of the summary judgment motion, we didn't challenge the fact that she raised a prima facie case. Had we known, for example, that she would try to inject some kind of animus analysis into the undue hardship analysis, we might have challenged the sincerity of her religious belief, for example, on the basis that she didn't explain whether she's also avoided other common medications like the ones that Your Honor points out that are indicated in the policy.

[00:16:35] Speaker 02:
So you're saying that the policy, despite its sort of categorical phrasing, again, it says, an objection to the vaccine on the basis of fetal concerns do not qualify for religious exception. These professed beliefs are personal moral choices and or conscientious objections. rather than a tenant of a religious faith. Sounds pretty categorical to me, doesn't it?

[00:16:57] Speaker 01:
You have correctly read the policy, Your Honor. But again, I think that the totality of the record here, including the evidence that exception requests were given individualized assessment, contradicts the idea that there was some kind of categorical determination happening. And of course, even if this court is concerned about the neutrality or in general applicability of the policy, It is undeniable that OHSU had a compelling state interest in stemming the spread of COVID-19. That's the Roman Catholic Diocese case from 2020 from the Supreme Court.

[00:17:29] Speaker 01:
OHSU is a flagship hospital in the state of Oregon. It was in the middle of a historically unprecedented global pandemic, and this was the policy that they put forth, and we believe that it was constituted.

[00:17:43] Speaker 02:
Are you defending the policy, or are you not? I seem to here are two different arguments. One, there is this policy. I've read it correctly, but it may depend on some factual nuances of how it is applied person to person. But now you're making it appear as a defense of the categorical policy. Which is it?

[00:18:05] Speaker 01:
Well, the constitutionality of the policy, I wouldn't say is directly at issue here. But yes, we're defending the constitutionality of the policy. There is no question that there is a compelling state interest that OHSU had to enact such a policy.

[00:18:23] Speaker 02:
Is there a compelling state interest to not treat a person's religious objection to the use of fetal cells in vaccines as not religious at all?

[00:18:37] Speaker 01:
No, Your Honor. There's a compelling state interest in controlling the spread of COVID-19. And the purpose of the policy, again, writ large, was to ensure that the people who were working in person in its hospitals were not going to expose other patients or other employees to the vaccine.

[00:18:57] Speaker 02:
Right. But the basis for rejecting her religious exemption wasn't because this vaccine policy would satisfy strict scrutiny or satisfy a compelling interest. It rejected her claim at the threshold. Right. There's a letter to an ER 549 to Brittany.

[00:19:16] Speaker 02:
stating that, again, repeating the language in the policy, examples of beliefs that do not qualify for a religious exception include an objection to the vaccine on the basis of fetal concerns. So we've got a policy, we've got an application of the policy, and it's based on the claim that at the threshold, we are not even going to consider your objection as religious at all.

[00:19:38] Speaker 01:
That's not correct, Your Honor. We don't know why her particular exception request was denied.

[00:19:44] Speaker 01:
again, we didn't evince evidence about it because it was unnecessary. Ms. McDonald did not evince evidence about it because I don't know why. But the point is that the policy is neutral and generally applicable as applied.

[00:20:03] Speaker 01:
And there's no evidence to the contrary in the record.

[00:20:06] Speaker 02:
Is there evidence in the record that Ms. McDonald's objection was religious in nature, as she has pled it?

[00:20:17] Speaker 01:
Again, we did not dispute that at summary judgment. So no, there's no evidence to the contrary. Although, as we indicate in our briefing, there are some indicia of insincerity. We didn't pursue those for purposes of summary judgment because we were confident in our showing on undue hardship.

[00:20:37] Speaker 04:
Did she ever say this is the reason for my objection?

[00:20:42] Speaker 01:
She provided about a five or six page statement explaining include the use of fetal tissue and vaccine. It did. Yes, your honor.

[00:20:56] Speaker 01:
Unless the court has further questions, I'm inclined to rely on our briefing.

[00:21:03] Speaker 01:
Thank you, your honor.

[00:21:03] Speaker 02:
Thank you, counsel.

[00:21:16] UNKNOWN:
Okay.

[00:21:17] Speaker 03:
Your Honor, one of the things that OHSU argued is that there was an unprecedented flood of religious exception requests. My argument, Your Honor, is that it's no excuse. In Masterpiece Cakeshop, the Colorado Civil Rights Commission, the Supreme Court said, the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the beliefs of affected citizens. That is an absolute, even during a pandemic.

[00:21:50] Speaker 03:
OHSU officials impose and enforce regulations hostile to specific religious beliefs here, and Ms. McDonald clearly was an effective citizen. The bottom line is that the government doesn't get to say, you know, you, because we are okay with your religious beliefs, you qualify. You, because we disfavor your religious beliefs, you do not.

[00:22:11] Speaker 03:
Now, you know, as your honors all know, you know, when it comes to, you know, even assuming that there is a compelling interest, it has to be narrowly tailored. And it's not narrowly tailored if it permits some activity that would otherwise be objectionable and substantially burdens others. You know, Ms. McDonald was substantially burdened here. because she was put in the position of having to choose between fidelity to employment and fidelity to her sincere religious beliefs.

[00:22:46] Speaker 03:
She was, and there was no narrow tailoring. You know, if somebody just, you know, if you pick a given religion, be it Jehovah's Witnesses or perhaps Christian scientists who object to certain types of vaccines or vaccines in general, you know, if they would qualify for religious exception, then my client's specific beliefs should qualify for religious exception as well.

[00:23:14] Speaker 03:
The policy for OHSU was neither neutral nor generally applicable. It's not generally applicable because it not only invited them to consider the particular reasons for the request, it specifically said, if your reasons are X, Y, and Z, you will be disqualified. And it didn't matter what position they were in. If you look at, I believe it's footnote number three in my reply brief, even employees at OHSU who worked remotely were disqualified based on certain beliefs.

[00:24:02] Speaker 03:
And to be clear, Title VII doesn't allow it either. Title, uh, title seven, uh, makes it, I mean, allowing them to, you know, basically say, you know, we disqualify you based on your beliefs and then justify it after the fact. Um, it's, it would undermine the whole purpose of title seven and the whole purpose of title seven is to, uh, you know, is to prevent employees from having to make the Hobson's choice of, uh, you know, um, violating their, uh, sincere, uh, religious beliefs to maintain their employment and, uh, losing their job just out of, you know, out of honoring their God.

[00:24:39] Speaker 03:
So with that, I'll be happy to answer any additional questions you might have.

[00:24:46] Speaker 02:
Thank you, counsel.

[00:24:48] Speaker 02:
The case is submitted.