United Airlines demands employees who are suing for firing them over their religious objections to the company’s coronavirus vaccine mandate must turn over their private communications with pastors or religious advisors related to the vaccine, court filings show.
The airline’s attorneys made the demand in the discovery phase of a lawsuit filed in September of 2021, in which eight United Airlines employees forced onto unpaid leave sued on behalf of 2,000-plus workers seeking exemptions from the company’s coronavirus vaccine mandate. The lawsuit alleges the company violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) by discriminating against the employees based on their religious beliefs and medical conditions.
United Airlines notably had one of the strictest COVID vaccine mandates in the country for a private company, even compared to competing airlines. In August of 2021, the airline told its 67,000 U.S. employees that they would have to get vaccinated against the virus or face firing. United reported at the time that roughly 96 percent complied with the mandate, though several hundred who refused were fired. Approximately 2,200 employees received what the company called religious and medical “exemptions,” though that consisted of the company granting them what it called a “reasonable accommodation” by placing them on unpaid leave and stripping them of their medical benefits.
In other words, the “accommodation” of losing all their pay and benefits for up to six years meant they were terminated.
In addition to the loss of their income for several months before a federal court order got them back on the job while this lawsuit is ongoing, those employees, many of whom are self-professing Christians who objected to the vaccine because it was developed using aborted fetal tissue, have reported experiencing “mental anguish, financial and emotional distress.” Plaintiffs in the lawsuit alleged that they were dealing with highly adverse outcomes because of the “reasonable accommodation,” like risking homelessness and foregoing a spouse’s cancer treatment.
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In February of 2022, judges for the U.S. Court of Appeals for the Fifth Circuit, which is widely considered the most conservative federal court, held that the mandate inflicted irreparable harm and remanded the case to district court. The Fifth Circuit denied the airline’s petition for rehearing the case in August, one judge accusing the company of “coerc[ing] its employees into violating their religious beliefs.”
“[Y]ou’ve obviously suffered irreparable injury when you’re forced to violate your faith in order to get your job back. The injury would be entirely reparable by money damages if it was just about a loss of money. But it’s not. It’s about a loss of faith. And it’s about a crisis of conscience. You’re being coerced into sacrificing your faith in order to keep your job,” Judge James Ho wrote in a concurring opinion denying the rehearing.
On May 30, 2023, attorneys for United filed a motion to compel the production of “all communications with any religious or spiritual advisors regarding vaccines or immunizations since the age of 18” and “any communication you sent to or received from with any religious or spiritual leaders about the subject of United’s vaccine policy, the COVID-19 vaccine, your requests for accommodation, your placement on unpaid leave, or this Lawsuit itself from January 1, 2020 through time of trial.”
The motion argues that plaintiff’s “waived any objection to the production of communications with spiritual and religious advisors about the COVID-19 vaccine or United’s vaccine policy by putting their religious beliefs in issue by bringing a Title VII religious discrimination case and alleging that those religious beliefs conflict with United’s COVID-19 vaccine policy.”
The airline’s motion claims:
Despite putting their religious beliefs at issue, Plaintiffs hide behind the shield of clergy privilege in an attempt to protect against discovery of communications that might tend to undermine any claim of sincerity, or that may otherwise show their positions on vaccines are not supported by the religious teachings of their church and instead are motivated by political, secular or other reasons not protected by Title VII.
Without access to the contemporaneous communications made by Plaintiffs regarding the specific areas over which are relevant to this suit, United is left with essentially nothing more to evaluate the sincerity of Plaintiffs’ religious beliefs than to take them at their word. The trust requirement runs contradictory to the adversarial nature of our justice system, which allows parties to verify and test the credibility of parties’ assertions.
Attorneys for the United Airlines employees filed opposition to the company’s motion to compel last week, calling the airline’s attorneys “dead wrong” and accusing them of “harassing” the plaintiffs.
The employees are fighting back, represented by partners Gene Schaerr, Mark Paoletta, and Brian Field from the D.C. law firm Schaerr Jaffe, with John Sullivan and Austin Nimocks from the Texas firm SL Law.
“United still acts like it cannot fathom why any employee would be uncomfortable receiving a COVID-19 vaccine. And United certainly cannot imagine that anyone would be deterred from doing so because of sincere religious beliefs,” Schaerr Jaffe’s opposition brief states. “Indeed, as United’s CEO Scott Kirby explained, United views such people as ‘all [of a] sudden decid[ing] ‘I’m really religious,’ and irrationally ‘putting [their] job[s] on the line.”’
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“But the Court should not countenance United’s ignorance about the crisis of faith it forced upon many of its employees,” the opposition brief continues. “And the Court should reject United’s professed disbelief that any employee wanted to have heartfelt and confidential discussions about these issues with clergy.”
Plaintiff’s attorneys argued that Fifth Circuit precedent states that inquiry, if any, into the religious beliefs of a party who brings a Title VII religious discrimination claim “must be handled with a light touch, or judicial shyness.”
“[T]he Fifth Circuit stated that inquiries into those matters ‘would stray into the realm of religious inquiry, an area into which we are forbidden to tread.’ That is why ‘the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged’ and is usually ‘accepted on little more than the plaintiff’s credible assertions,'” the brief states.
“…United does not even attempt to argue that it has any ‘objective basis for questioning the religious nature or the sincerity’ of Plaintiffs’ beliefs. United simply believes it is allowed to make a searching inquiry into religious beliefs irrespective of whether it has an ‘objective basis’ for doing so,” the brief continues.
Plaintiff’s attorneys also noted that a law in Texas, which is where the case is taking place, states that communicants have a privilege to refuse to disclose and to prevent any other person from disclosing a
confidential communication by the communicant to a clergy member in the clergy member’s professional capacity as spiritual adviser.
The Federal Rules of Evidence require this federal court to apply that Texas law as the legal standard for this dispute.
United Airlines will allow unvaccinated staff to return to work after placing more than 2,000 employees with vaccine exemptions on unpaid leave. https://t.co/qxS6OzOXc7
— Breitbart News (@BreitbartNews) March 12, 2022
The airline’s attorneys ultimately asked Judge Mark Pittman in the U.S. District Court for the Northern District of Texas to compel the employees to submit their communications.
Plaintiffs’ attorneys asked Pittman to deny United’s motion, award Plaintiff’s attorney’s fees for the time spent responding to the motion, and to allow both parties to return their attention to discovery.
“As the record in this case makes clear, United cannot accept the notion that anyone might disagree with its demand that all employees receive a COVID-19 vaccine. And the idea that there may be a religious basis for such an objection apparently offends United to its core,” the brief from Schaerr Jaffe and SL Law states. “That is why United continues its scorched-earth approach to class discovery, demanding to see everything Plaintiffs said about the COVID-19 vaccines to their clergy, despite the Fifth Circuit’s confirming that a plaintiff need only provide a ‘credible assertion’ of the belief at issue.”
“Plaintiffs have provided United and this Court with far more than just a ‘credible assertion,’ and the Court should deny United’s motion and direct United to discontinue its attempt to invade the deeply and sincerely held religious beliefs of Plaintiffs,” the brief continues.
The case is Sambrano v. United Airlines, No. 4:21-cv-2074 in the U.S. District Court for the Northern District of Texas.