Chutzpah is a Yiddish word derived from the Aramaic ḥuṣpāh. It means impudence, gall, and an audacious disregard for rules.
In the world of employment law, it can aptly describe employees who try to get what they want without regard to truth, justice, or the American way. Which means, for those of us old enough to remember, that it’s a job for Superman.
The recent summary judgment dismissal of Kennedy v. PEI-Genesis, which resulted from PEI’s refusal to provide a religious accommodation, validates this cynical perception of some employees and the need for Superman to refine his superpowers.
It all begins with Groff v. DeJoy
In Groff v. DeJoy, the U.S. Supreme Court held that an employer refusing a religious accommodation has to do more than show that accommodation will result in a de minimis cost or inconvenience. Instead, the employer must prove that the accommodation “will result in substantial increased costs in relation to the conduct of the particular business.”
Since Groff was decided in June of 2023, my colleague Robin Shea and I have penned multiple articles about this game-changing decision. We have described the nature of the religious beliefs protected by Title VII, the requirement that those beliefs be sincerely held, and the “undue burden” required to justify a refusal to accommodate those beliefs.
A broader approach to evaluating requests for religious accommodation is required
In the pre-Groff era, those of us who represent employers typically focused our defense on showing that the cost of accommodation to the business was more than de minimis. You don’t need to be a rocket scientist, or a lawyer, to know that it is safer to take the path of least resistance rather than a road full of potholes.
Groff does not negate the ability to prove that a religious accommodation will result in substantial increased costs to a business (both financial and otherwise), but it makes that path more difficult and requires a broader focus on potential defenses.
As our prior articles have suggested, this requires employers to make sure that an employee’s request for an accommodation truly is “religious” in nature. It also requires employers to assess whether the beliefs motivating the request are sincerely held.
Although these are difficult determinations to make, and fraught with their own peril, the decision in Kennedy v. PEI-Genesis validates the importance making them.
Kennedy v. PEI-Genesis – Plaintiff is short on the law, but long on chutzpah
In April 2022, Jim Kennedy received and accepted an offer of employment with PEI-Genesis. At that time, he was informed that the company required all employees to be vaccinated against COVID-19.
In June 2022, when Mr. Kennedy was asked to provide proof of his vaccination, he objected, claiming that the vaccine was “unsafe, ineffective and insufficiently researched.” He did not indicate that his objection was based on any religious belief.
However, a week later, Mr. Kennedy submitted a letter seeking a religious accommodation exempting him from PEI’s vaccine requirement.
According to the letter, Mr. Kennedy’s exemption request was based on his desire to follow the New Testament’s mandate to “protect [him]self against anything that may defile [his] body and or conscience” because the “ingestion of a medication or other chemical substances defies natural law.”
The request was denied, Mr. Kennedy refused to be vaccinated, and the company terminated his employment.
No need to guess what happened next. Mr. Kennedy sued PEI seeking back pay, damages for emotional distress, and punitive damages. What a country!
Even though he sought to recover for emotional distress and claimed to have a religious objection to “defiling” his body with the COVID vaccine, Mr. Kennedy (with the aid of his lawyer) objected to the production of his medical records. In a scathing rebuke of both Mr. Kennedy and his lawyer, and a precursor of what was to come, the judge rejected the objection as one “short on law and steeped in chutzpah.”
The righteous hammer, aka a federal judge, drops on Mr. Kennedy
In granting summary judgment to PEI, the judge correctly noted that Mr. Kennedy was required to establish that “he held a sincere religious belief that conflicted with a job requirement.” That determination requires a judge to differentiate views that are religious in nature from those that are “essentially political, sociological or philosophical.”
In an opinion that straddled between assessing whether Mr. Kennedy’s objection to the vaccine was religious in nature or sincerely held, the dismissal order included reference to the following facts:
- Mr. Kennedy’s initial request for an accommodation included no reference to religion.
- Mr. Kennedy was raised Catholic and continued to identify as such, but he had not been a member of a Catholic parish since 1997 and was not currently a member of any religious congregation. (Not belonging to a parish or congregation does not necessarily mean that the belief is not “sincere,” but for someone claiming to be Catholic, it is arguably fatal.)
- Mr. Kennedy’s opposition to the COVID vaccine was not a product of Christianity’s comprehensive system of beliefs about fundamental or ultimate matters like life, death, or the hereafter.
- Instead, it was based on a single moral teaching that he should not defile his body.
- As for this single moral teaching, Mr. Kennedy was inconsistent in its practice because he willingly put some medicines in his body but not others.
Based on these and other findings, the judge dismissed Mr. Kennedy’s claims without ever mentioning Groff v. DeJoy or making any determinations about whether granting the accommodation request would have resulted in an undue burden on PEI.
The lessons to be learned
Although the decision in Kennedy v. Pei-Genesis touched on legal principles relating to both the religious nature of Mr. Kennedy’s purported beliefs and his sincerity in asserting them, I have a much simpler explanation for the outcome. If it walks like a duck and quacks like a duck, it’s probably a duck.
But what makes a duck a “duck” in the world of religious accommodation? There is no simple answer, but here are some important guideposts:
- Political, sociological, and philosophical beliefs are not religious beliefs entitled to an accommodation.
- A single idiosyncratic belief, even if couched in religious terms, may not be part of a comprehensive system of beliefs about fundamental matters of life and death.
- However, even unconventional beliefs about such fundamental matters are entitled to protection provided they are sincerely held.
- Sincerity does not require perfect adherence, since even the sincerest believer may stray from time to time. (Really. Who hasn’t fallen off a wagon at some point in the past?)
- If an employee has behaved in a manner inconsistent with the professed religious belief or practice, that behavior may indicate a lack of sincerity.
- If an employee has previously expressed a secular reason for a requested accommodation, that may indicate a lack of sincerity, especially if the accommodation is one generally desired by other employees.
A final word to the wise
Our Constitution commands a separation between church and state. As a result, it should come as no surprise that the Supreme Court has instructed lower courts to avoid becoming embroiled in deciding whether religious beliefs are reasonable, logical, consistent, or comprehensible.
Equally unsurprising is the position of the Equal Employment Opportunity Commission that the sincerity of an employee’s religious beliefs generally should be presumed.
But there are plenty of employees with chutzpah who will try to get what they want, from schedule changes to days off, and judges are accustomed to this.
Since Groff came down there have been other cases where judges dismissed religious accommodation lawsuits because the employee’s request did not appear to have been motivated by any “religious” belief that was “sincere.”