It is vaccine season, and, at least since 2021, it is never not vaccine litigation season. Court opinions rejecting the positions of vaccine-resistors are refreshingly consistent. (Also consistent is the fact that no other blogposts are more likely to elicit complaints from the idiocracy. Just like how we get notifications/pings when certain types of complaints are filed, vaccine-resistors must get notifications whenever someone has the temerity to write that vaccine requirements actually make sense. There are folks out there who are keen to express their unhappiness with the DDL blog’s position on the subject of vaccines. That is okay with us. Bring on the criticisms. We welcome more readers, even when they have to move their lips to make their way through the text.)
Mason v. Cook County, Illinois, 2026 WL 2902330 (7th Cir. Sept. 28, 2026), is, perhaps, a little bit more interesting than most decisions. It comes from the Seventh Circuit, a court we have admired since our University of Chicago Law school days. It affirms a decision by District Judge Kennelly, who is as smart as they come. Finally, it contains a dissenting opinion, so we get some conflict, which is needed to drive any decent drama.
In Mason, a government pharmacist was fired for refusing to get the COVID-19 vaccine, “purportedly for religious reasons.” She sued for religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (see 42 U.S.C. 2000e-2(a)). Judge Kennelly granted summary judgment in favor of the defense, finding no dispute of material fact that the County would have faced undue hardship by exempting the plaintiff from the mandatory vaccine policy. That decision was affirmed by the Seventh Circuit in a 2-1 published opinion.
Failure to Accommodate Claim
The plaintiff did not have a lot of legal authority to support her claim. But she did cite what she doubtless considered a higher authority: 1 Corinthians 6:19 (“Or do you not know that your body is a temple of the Holy Spirit whom you have from God? You are not your own for you were bought with a price. So glorify God in your body.”) Title VII is somewhat more nuanced than Corinthians. To sustain a failure to accommodate claim under Title VII, a plaintiff must show that (1) her belief was religious and conflicted with the employer’s requirements, (2) she notified her employer of her religious belief, and (3) her need for a religious accommodation was a motivating factor in the adverse employment decision. If the plaintiff establishes that prima facie case, the burden shifts to the employer to “show that any reasonable accommodation would have resulted in undue hardship.” Both the Mason district and appellate courts assumed that the plaintiff had made out a case of failure to accommodate based on a sincerely held religious belief, and then the courts dove into the issue of undue hardship. The County demonstrated that there was no religious accommodation possible for someone whose workplace was a room with 60 other people, who also counseled patients face-to-face, and who brought drugs to hospital floors where COVID patients were treated. Her job could not be done remotely, and there were no remote positions available. Therefore, the defendant had established undue hardship as a matter of law. Healthcare workers had a high risk of contracting and transmitting COVID. Outbreaks had already strained the defendant’s ability to provide necessary services to patients and to avoid infecting medically vulnerable patients. The plaintiff not only worked in close quarters, but also regularly was in contact with patients.
The dissent suggested that the County could have done more to support its claim of undue hardship. (The dissent characterized the County’s explanation of hardship as a “good start.”) Yes, the majority acknowledged, the County could have done more. One could always do more. But the County had done enough (via several affidavits) to demonstrate that less restrictive alternatives, such as masking and social distancing, would not have adequately reduced the risk of Covid transmission. The plaintiff presented no contrary evidence that reasonable accommodations were possible.
Disparate Treatment Claim
The plaintiff mounted a “conclusory” challenge to the district court’s determination that she could not identify an apt comparator to make out a disparate treatment claim of religious discrimination. The defendant’s treatment of another unvaccinated employee was not a similar circumstance to the plaintiff’s since that other employee was a blinded clinical trial subject in a Covid-19 vaccine study and that employee did not know whether a vaccine or a placebo had been administered. Further, that other employee had not sought an exemption. When the study was unblinded, that employee promptly got a vaccine. There was hardly any similarity at all. (The Mason dissent agreed with the majority that the plaintiff had given “short shrift” to the disparate treatment theory, but argued that it should survive for the same reasons as accommodation claim.)
Score another blow for vaccine rationality. The Enlightenment and science, for the moment, survive. Now bring on the nastygrams.