Court: Pilot, guide will suffer under vaccination mandate
The decision to get vaccinated or go on leave “is an impossible choice for grievers who want to remain faithful but need to put food on the table,” said the majority opinion of Jennifer Walker Elrod and Andrew Oldham.
They said the lower court judge erred in saying the employees had not suffered irreparable harm and sent the case back to him to consider other factors, including the likelihood that the two employees finally win their legal battle.
The third judge on the panel, Judge Jerry E. Smith, rejected the majority’s conclusion in a long and scathing dissent. Smith said the lower court judge’s denial of an injunction last year should stand.
“For every conceivable reason the plaintiffs might lose this appeal, they should,” Smith wrote, saying the decision by his fellow panelists violated law and court precedent.
He dismissed the idea that the two men suffered irreparable harm, saying the federal civil rights law provisions at stake in the case gave them the option to sue for damages if they won.
And, he says, employees aren’t likely to win. Among the reasons: Smith said the religious discrimination claim falls because United has made efforts to accommodate workers’ religious objections, including offering employees alternative jobs that don’t involve the public and unpaid leave as an alternative to dismissal.
“Even if the unpaid leave is not a reasonable accommodation, the plaintiffs have not demonstrated that United could accommodate them without undue hardship, so they cannot succeed,” Smith wrote.
United Airlines said in an emailed statement that it would continue to defend its policy. He said employees who don’t face customers and who can’t or won’t take the vaccine for medical or religious reasons continue to work with masking and testing requirements. Pilots and flight attendants can opt for paid positions that do not require contact with the public, the statement said.
Thursday’s ruling remands the case to U.S. District Judge Mark Pittman in Fort Worth, Texas.
Elrod was appointed to the court by President George W. Bush; Oldham, by President Donald Trump; Smith, by President Ronald Reagan.
(Copyright 2022 by The Associated Press. All rights reserved.)