Monday, September 14, 2026
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‘We Followed CDC’ Is Not Free-Pass in Cases Over Vaccine-Mandates—Ninth Circuit
Opinion Rejects Claim That Transit System Was Entitled to Deny All Employee Requests for Religious Accommodation Because Experts Said Other Safeguards Are Inferior
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday upheld a $7.8 million judgment in favor of six terminated employees of a public transit system who asserted that the entity failed to accommodate their faith-based objections to a 2021 COVID-19 vaccine mandate, in violation of state and federal law, by denying all requests for religious exemptions to the policy.
Rejecting the view of the Bay Area Transit Authority (“BART”) that any accommodation of the requests would have caused “undue hardship” because public-health guidance at the time provided that all other preventative measures were inferior to inoculation, Circuit Judge Ryan D. Nelson, writing for the court, declared:
“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….Thus, even if [the defendant] established that the vaccine was the most effective way of preventing COVID transmission in the workplace, that does not mean that less effective preventive measures are per se unreasonable accommodations.”
Blanket Denials
Nelson acknowledged recent Ninth Circuit jurisprudence upholding blanket denials of religious exemptions by a regional fire-and-rescue-agency and a public-benefit healthcare company based on the view that accommodating the objecting employees’ religious exemptions would cause “undue hardship.” However, he opined:
“Given that [the transit authority] is not in the health and safety business, that the Six Former Employees all had roles that required minimal close-quarters interaction with other individuals, and that no evidence suggests that the Six Former Employees were unable or unwilling to wear a mask or take similar precautions, substantial evidence supports the jury’s verdict.”
The question arose after 35 former BART employees filed complaints against the employer in 2023, asserting failure-to-accommodate claims under Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act (“FEHA”), and a cause of action brought under 42 U.S.C. §1983 for interference with their right to the free exercise of religion.
Summary Judgment Motions
After the parties cross-moved for summary judgment, Senior District Court Judge William Alsup of the Northern District of California granted the defendant’s motion as to the §1983 claim and denied plaintiffs relief as the remaining causes of action on March 18, 2024. The individual lawsuits were then consolidated and, after the majority of former employees either withdrew their claims or settled, six plaintiffs remained.
In October 2024, a jury returned a verdict for the plaintiffs, Tonya Lewis-Williams, Raymond Lockett, Rosalind Parker, Bradford Mitchell, Ryan Rivera, and Szu Cheng Sun, awarding them an aggregate of $7.8 million. BART renewed an earlier motion for JMOL and requested a new trial; Alsup denied the requests.
BART appealed and the plaintiffs cross-appealed the order granting partial summary judgment on their free-exercise claim.
Nelson also penned a concurring opinion, saying that the majority correctly declined to address the §1983 claim but characterizing Alsup’s reasoning as to the plaintiffs’ free-exercise claim as “troubling” and calling for the U.S. Supreme Court to overrule its 1990 decision in Employment Division v. Smith.
Failure to Accommodate
As to the failure-to-accommodate claims, the jurist wrote:
“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 JMOL therefore turns on whether BART carried its burden of showing that Plaintiffs’ religious objections could not be accommodated without undue hardship.”
Turning to BART’s assertion that its reliance on public-health guidance is dispositive of the undue-hardship defense, he opined:
“[A]lthough BART is correct that ‘the views of public health authorities, such as the U.S. Public Health Service, [Centers for Disease Control and Prevention], and the National Institutes of Health are of special weight and authority…[t]he views of these organizations are not conclusive.’…BART also introduced no evidence of the public health guidance it relied on, and the jury was not required to infer that BART’s non-percipient expert witnesses accurately described the scientific information that supported BART’s accommodation decisions.”
He continued:
“BART argues that any increase in safety risk resulting from an accommodation is an undue hardship. This argument conflicts with the Supreme Court[] [jurisprudence].…[A]n employer is not absolved of its burden of proving that an accommodation is unreasonable by merely showing that the accommodation has safety implications.” Recognizing that, “[e]ven if…alternatives to vaccination are not per se unreasonable accommodations…, they may still impose an undue hardship considering either the nature of that business, the religious objector’s work duties, or some other factor,” he remarked:
“BART [does not] 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.”
Nelson added:
“Because we affirm the jury’s verdict on the Six Former Employees’ Title VII and FEHA claims, we need not address the now-moot conditional cross-appeal of the order granting summary judgment for BART on their Free Exercise claim.”
The judge declared:
“Title VII serves as a bulwark to protect the rights of conscience. A jury reasonably concluded that the Six Former Employees carried their burden under Title VII and FEHA, and that BART would not have suffered an undue hardship from accommodating those employees. We will not disturb that verdict.”
Concurring Opinion
Saying that “[b]ecause this issue is recurring in our circuit and elsewhere, I explain why the district court’s analysis on the free exercise claims is troubling,” Nelson characterized Alsup’s ruling as a misapplication of Smith and its progeny, which stand for the proposition that the Free Exercise Clause does not require a religious exemption from a valid, neutral, and generally applicable law.
He wrote:
“Relying largely on out-of-circuit precedent, the district court concluded that BART’s vaccine mandate policy was neutral and generally applicable. The district court explained that the vaccine mandate policy generally applied because it did not establish a ‘regime[] of unfettered discretion [permitting] discretionary treatment of religion.’” He asserted that the Ninth Circuit has rejected the “unfettered discretion” standard and argued:
“The discretionary mechanisms in BART’s vaccine policy in which it interviewed employees, analyzed their religious beliefs, and made individualized determinations on exemptions rendered the policy not generally applicable and thus triggered strict scrutiny.”
Highlighting that “[t]he real problem is that Smith is demonstrably erroneous,” he commented:
“My reservations about the district court’s application of Smith elide a more fundamental tension. Courts are bound by Smith and thus have been forced to apply a doctrine that has proved unworkable. Smith does not follow the original meaning of the Free Exercise Clause as it was understood either in 1791 or 1868. And despite reasonable doctrinal reservations about what would replace Smith,…America would be better if Smith were overruled.”
The case is Lewis-Williams v. San Francisco Bay Area Rapid Transit District, 25-618.
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