If you haven’t yet seen the underreported story of the vegan refusing the flu vaccine at Cincinnati Children’s Hospital Medical Center, the case is worth a glance. Essentially, vegan and ex-hospital employee Sakile Chenizra was fired from the hospital for refusing to get an employee-mandated flu vaccine at the request of her employers. It’s common for hospitals to impose this, as it is in nursing homes, schools, etc. If you’re not aware, the flu vaccine as it stands in 2012/2013 is not vegan: it’s egg-based and also tested on animals. A great dialogue regarding the ethics of this are located here at Choosing Raw.
Chenizra sued the hospital for religious discrimination under Title VII, claiming the veganism, or rather, her belief in it, is strong enough to be considered a religious belief. Surprisingly, the court is allowing her claim to move forward! They wouldn’t throw the case out, and it’s set for a July 9th date. This is good news! If veganism can be taken seriously as a belief “with a sincerity equating that of traditional religious views” (the court’s words) then our foot is in the door for taking animal rights seriously. Which means, well…I’ll leave that to your imagination! For a preview of that possible future, check out the Nonhuman Rights Project.
So, I’m very excited to see how all this develops. However, legal stuff isn’t my forte, so I had the privilege of getting the insight of a friend and longtime vegetarian Joe Dunman. He was kind enough to give some background on this issue, and other comments. His remarks are below. Enjoy!
Former hospital employee Sakile Chenzira, a vegan, has sued Cincinnati Children’s Hospital for religious discrimination after they fired her for refusing a vaccination with animal ingredients. The Hospital tried to get her case tossed out before trial, arguing that veganism is not a religion, but a federal trial court in Ohio will allow the case to proceed. Chenzira’s arguments raise interesting legal issues in American workplace discrimination law.
The Law of Religious Discrimination
Speaking very generally, Title VII of the Civil Rights Act is a federal law that prohibits most workplace discrimination on the basis of race, color, national origin, sex, or religion. Most states have similar laws that extend similar protection to individual characteristics that our society has deemed off-limits when it comes to making employment decisions. In other words, you can’t be fired, refused a job, segregated from co-workers, or otherwise penalized just for your natural skin tone, or for being Jewish, or for being Mexican, as just a few examples.
While skin color, race, sex, and national origin are easily defined and proven, religion is a more complicated matter. American courts don’t require religious plaintiffs to prove that their particular belief system is true or valid, only that they honestly believe, and those beliefs rise to a level that constitutes “religious belief.” In the words of the Equal Employment Opportunity Commission, “the law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.”1
Not all courts agree how to determine what constitutes a “religious belief” for the purposes of Title VII or other anti-discrimination laws. While a belief in a supernatural creator or god has been found to be unnecessary, there is still dispute whether “[p]urely personal, political, ideological, or secular beliefs” can qualify.2 For example, communists, members of organizations like MOVE and the Ku Klux Klan, and Church of Marijuana practitioners have been denied protection under Title VII.
Of course, just proving that you adhere to a religious belief system isn’t enough to win a discrimination suit. In general, you also have to prove that you suffered an “adverse employment action” like getting fired or demoted, getting a pay cut, or being reassigned to lesser duties, and also prove that your religious beliefs or practices were the basis for that action. This can be a tough sell in the “at-will” world of American employment where any number of unprotected behaviors (like being tardy, insubordinate, unreliable, or just unlikeable) can be a perfectly legal basis for termination.
Employers get some additional leeway. While they must generally accommodate the religious practices of their employees (where they intersect with job duties), employers don’t have to do so if it would cause them “undue hardship.” According to the EEOC, “an accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”3
Veganism as a Religion
The legal argument that veganism, at least as part of a wider moral and ethical perspective, qualifies as a “religion” for the purposes of workplace discrimination law is not entirely new. The California Court of Appeal ruled on such a case in 2002.
Computer technician Jerold Friedman was offered a permanent job with California-based Kaiser Foundation Hospitals in 1998. As a condition of his employment, Kaiser required him to receive a mumps vaccination. When Friedman, a long-time Ethical Vegan, learned that the mumps vaccination is grown in chicken embryos, he refused to submit to the vaccination, but offered to allow his employer to give him regular health checkups and test for the disease. Kaiser’s management and human resources department refused his offer and terminated him.
Friedman sued Kaiser for religious discrimination under California’s Fair Employment and Housing Act (FEHA), a state law similar to Title VII. He alleged that his Ethical Vegan lifestyle and philosophy qualified as a religion for the purposes of the law. The trial court rejected Friedman’s argument, however, so he took his case to the California Court of Appeal.
Friedman contended that Ethical Veganism is the ethical and moral equivalent of a religious belief, though it lacks traditional supernatural or “spiritual” foundations. He argued that his veganism was more than a “trivial dietary preference.” The EEOC’s review of his claim offered support, suggesting that Friedman adhered to ethical and moral principles that transcended diet and lifestyle and qualified as a “religion” for the purposes of the FEHA.
Unfortunately for Friedman, the California appellate court disagreed. After extensive discussion of past decisions and tests to determine what qualifies as “religion,” the court found that Friedman’s veganism was just not enough. For example, because his beliefs didn’t include any position on “ultimate questions” (such as the origin of life), they didn’t quite meet the standard.4
Friedman petitioned the California Supreme Court for review of the decision but was denied. He then sought the opinion of the U.S. Supreme Court but was similarly turned away. Today, the Court of Appeal decision ruling that Ethical Veganism (and by extension any similar vegan diet) does not qualify as a religion for the purposes of workplace discrimination law remains in effect.
Sakile Chenizra’s Case
First, it’s important to note that the case of Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. does NOT hold that veganism is a religion that is covered by Title VII. This ruling is largely procedural. What the court says is the defendant Hospital can’t have the case tossed out without trial (a process called “summary judgment”) simply by arguing that veganism is not a generally-recognized religion. The plaintiff, vegan Sakile Chenizra, can now proceed with her discrimination suit and argue her case before a jury. She may still lose, but at least she will have a chance to prove she was discriminated against.
Chenzira has chosen an interesting strategy. She has attempted (accurately or inaccurately) to connect her diet to traditional Judeo-Christian beliefs by citing the Bible as justification for her veganism. That’s easier than Jerold Friedman’s effort to create a new “religion” where the court has not previously found one.
However, the court must be very careful. It already seems as though the judge has allowed the parties to debate whether or not the Bible actually supports a vegan diet. Determining what beliefs are Biblical and which are not is dangerous territory, since the First Amendment prohibits government from establishing a state religion or interfering with an individual’s free exercise of religious practices. It is unconstitutional for our secular courts to rule on what does or does not qualify as “Christian,” or “Biblical.” They aren’t supposed to care at all. They should only care whether a person’s beliefs are honestly held and whether they meet the standards of our discrimination laws.
In the likely event that she loses at trial, an appeal to the Sixth Circuit Court of Appeals is almost a certainty. Those interested in civil rights in general and veganism in particular should keep an eye on Sakile Chenzira’s legal plight.
Joe Dunman is a Kentucky attorney who specializes in civil rights, employment discrimination, and tort law. He can be reached at email@example.com.
1. For a general guide to Title VII religious discrimination law, see the EEOC website at http://tnl.su/UfITqC
2. United States v. Meyers, 95 F.3d 1475, 1484 (10th Cir. 1996). http://tnl.su/UfJ0T8
3. See note 1.
4.See Friedman v. S. Cal. Permanente Med. Group, 125 Cal. Rptr. 2d 663 (Cal.Ct. App. 2002). For a full discussion of religious discrimination and how it relates to vegans, see attorney Donna Page’s thorough and excellent “Veganism and Sincerely Held Religious Beliefs in the Workplace: No Protection Without Definition,” available at http://tnl.su/UfISDg
Image from: DrMeyer’s Blog