Downtown Berkeley BART station
SAN FRANCISCO — BART must pay $7.8 million to six workers who were fired by the transit district when it refused to honor their requests for religious exemptions from BART's Covid vaccine mandate, a federal appeals court has ruled.
On Sept. 11, a three-judge panel of the U.S. Ninth Circuit Court of Appeals sided with the workers in rejecting the appeal from the San Francisco Bay Area Rapid Transit District.
BART was attempting, again, to escape a jury verdict finding the transit district violated the religious rights of six workers and owed them at least $1.1 million each for the district's religious discrimination.
The appellate ruling was authored by Ninth Circuit Judge Ryan D. Nelson. He was joined in the opinion by judges Johnnie B. Rawlinson and Bridget S. Bade.
In the ruling, Nelson and his colleagues agreed BART fell well short of its need to show its decisions to not only reject the workers' Covid vaccine religious exemption request, but then to fire them, squared against the transit district's responsibilities under federal law to attempt to accommodate its workers' religious beliefs and practices.
BART, the judges said, needed "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 BART 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."
And the judges further agreed BART can't escape its obligations to accommodate religious objectors by claiming its actions were in keeping with “the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health..."
The case landed at the Ninth Circuit after BART appealed the decision by a San Francisco federal judge to uphold the jury verdict.
The jury rendered its verdict in October 2024, following a trial that centered on the question of whether BART had lived up to its obligations under the law to attempt to accommodate the workers' religious convictions before moving to terminate their employment.
According to court documents, six workers — identified as Raymond Lockett, Ryan Rivera, Tonya Lewis-Williams, Bradford Mitchell, Rosalind Parker and Szu-Cheng "S.C." Sun — filed suit in October 2022, represented by the Pacific Justice Institute, of Sacramento.
The lawsuit specifically accused BART of religious employment discrimination for refusing workers' request for accommodation in lieu of receiving a Covid shot, as the agency mandated.
BART imposed its Covid shot mandate on Oct. 14, 2021, requiring all of its agency employees to receive Covid shots or risk losing their jobs.
According to the lawsuit, 179 employees ultimately requested religious exemptions or accommodations under federal and state anti-religious discrimination laws. According to the complaint, 70 BART employees received their exemptions.
However, BART allegedly denied 109 exemption requests, maintaining the mandate even after medical evidence revealed the Covid shots did not prevent infection or transmission of the Covid virus.
In their lawsuit, the plaintiff workers said they refused to take the Covid shot because they believed the injections were formulated from human fetal cell lines, which may have been obtained from aborted fetuses. As staunch believers in the sanctity of human life as informed by their Christian faith, the workers said they could not in good conscience undergo medical procedures involving formulas obtained through abortions.
The former BART workers filed suit after the agency fired them for refusing to comply with the vaccination order.
BART has contested the lawsuit throughout, even choosing to take the case to trial and then appealing that verdict to the Ninth Circuit.
BART has consistently claimed it can't be sued because its mandate was based on guidance from public health officials, who had indicated only the Covid vaccine could actually protect workers and the public against the virus that causes Covid-19.
They argued no amount of masking, testing or other preventative measures would suffice, other than receiving the Covid shot.
They further argued their decisions didn't violate the workers' First Amendment religious freedoms because the workers should be required to abide by rules that are "generally applicable" to all workers, regardless of their religious beliefs, under the U.S. Supreme Court's holding in the 1990 decision known as Employment Division v Smith.
Under that ruling, the court has said employers have the ability to sidestep workers' religious rights so long as they impose rules that are neutral and are generally applicable to all workers, and providing exceptions to those rules would create an "undue burden" for employers.
But in the BART vaccine mandate case, the jury agreed that BART couldn't show it evenly applied the rules or that granting the religious workers' exemption was so difficult as to become an "undue burden."
On appeal, the Ninth CIrcuit judges agreed, saying BART must pay the workers for trampling their rights.
But in a special solo concurring opinion, Nelson went further still, calling on the U.S. Supreme Court to ultimately overturn Employment Division v Smith and calling on judges in the Ninth Circuit to "hew more closely" to existing Ninth Circuit precedent that doesn't grant employers "unfettered discretion" to ignore workers' religious rights.
Nelson noted that under the Smith precedent, government agencies have used the "general applicability" standards to set up a legal and regulatory framework that is hostile to religious workers and their beliefs in the workplace.
"The free exercise of religion—our first freedom—is ... at risk when agency discretion over exemptions is permitted," Nelson wrote.
"... Smith has created problems for our jurisprudence. Because lower courts misunderstand how agency discretion systematically disfavors religious freedom, they apply Smith to deteriorate religious liberty.
"This disserves Americans by not vindicating their religious rights against policies not truly neutral and generally applicable. Worse, Smith does not track the original meaning of the Constitution.
"It is high time we return to the principles recognized by the Founding generation and vindicated by Lincoln’s," Nelson wrote.
