Ninth Circuit: Employee’s Secular Belief Not Entitled to Religious Protection Under Title VII

A request for accommodation must be rooted in a bona fide religious belief, not simply an employee’s personal preference, the U.S. Court of Appeals for the Ninth Circuit explained in a case involving the COVID-19 vaccine.

Sherry Detwiler worked as a privacy officer and the director of health information for Mid-Columbia Medical Center (MCMC), a hospital in Oregon.

Detwiler describes herself as a practicing Christian who believes her body is a temple of the Holy Spirit and that she has a “religious duty to avoid defiling her ‘temple’ by taking in substances that the Bible explicitly condemns or which could potentially cause physical harm to her body.”

Detwiler sought a religious exemption from MCMC’s policy implementing the Oregon Health Authority’s administrative rule requiring health care workers to be vaccinated against COVID-19, absent an approved exemption.

Relying on sources she found online, Detwiler determined that COVID-19 vaccines were created from fetal cell lines and contained “neurotoxins, attenuated viruses, carcinogens, chemical wastes, and other potentially harmful substances.”

MCMC approved Detwiler’s request for a religious exemption from vaccination. As part of the accommodation, MCMC required Detwiler to wear personal protective equipment while in the office and to submit to weekly antigen testing for COVID-19. MCMC’s test required a participant to insert a cotton swab dipped in ethylene oxide (EtO) into one’s nostril, swirl the swab against the skin to collect a sample from the nasal tissue and then submit the swab for analysis.

Detwiler then requested a further accommodation, seeking an exemption from the weekly antigen testing. She informed MCMC that she found “multiple sources indicating that EtO is a carcinogenic substance.”

Citing her belief that her body is a “temple of God,” Detwiler stated that “[a]s a Christian protecting my body from defilement according to God’s law, I invoke my religious right to refuse any testing which would alter my DNA and has been proven to cause cancer. I find testing with carcinogens and chemical waste to be in direct conflict with my Christian duty to protect my body as the temple of the Holy Spirit.”

Detwiler proposed MCMC allow her to either submit to saliva testing for COVID-19 or to work remotely full-time.

MCMC denied the request, explaining that saliva testing was impractical because test results take 24 to 36 hours and Detwiler needed to appear for same-day, in-person work. Full-time remote work wasn’t feasible as it would create a hardship on Detwiler’s department and team.

When Detwiler refused to agree to antigen testing, MCMC terminated her employment. Detwiler sued, asserting religious discrimination in violation of Title VII and the parallel Oregon state law.

The defendants moved to dismiss the suit. The district court granted the motion and Detwiler appealed.

Affirming dismissal over one judge’s dissent, the Ninth Circuit ruled that a complaint must connect the requested exemption with a truly religious principle.

“Invocations of broad, religious tenets cannot, on their own, convert a secular preference into a religious conviction,” the court wrote. “To hold otherwise would destroy the pleading standard for religious discrimination claims, allowing complainants to invoke magic words and survive a dismissal without stating a prima facie case.”

Detwiler failed to demonstrate that her belief was religious, rather than purely secular.

“The District Court acknowledged the sincerity and religiosity of Detwiler’s belief in her body as a temple and even the implied prohibition on ingesting harmful substances,” the court said. “Therefore, at issue is Detwiler’s belief that the testing swab is harmful, and specifically that EtO is a carcinogen. This belief is personal and secular, premised on her interpretation of medical research. In essence, Detwiler labels a personal judgment based on science as a direct product of her general religious tenet.”

Her alarm about the test swab was too far attenuated from the broad principle to treat the two as part of a single belief, the court added.

“This concern about the harmful nature of EtO has no relationship with her religious beliefs,” the court said.

While Detwiler pointed to opposing authority from the Sixth, Seventh and Eighth Circuits, the court found “more relevance” in opinions from the Third Circuit and “numerous” district courts “that have held when the religious principles are too broad, and the connection to personal, medical judgments are too tenuous, plaintiffs have not pled a religious belief.”

“Indeed, crediting every secular objection bolstered by a minimal reference to prayer as religious ‘would amount to a blanket privilege and a limitless excuse for avoiding all unwanted obligations,’” the court wrote. “Expanding Title VII claims runs the risk of stretching these statutory protections far beyond their intended use.”

Courts must hold assertions of religious belief to the routine plausibility standard and examine whether there is any nexus between religion and a plaintiff’s viewpoint, the court held.

“Ultimately, Detwiler’s objection to testing is grounded in the secular belief that the nasal swabs in antigen tests are carcinogenic,” the court said. “She failed to plead facts demonstrating her belief in the harmfulness of the swabs was related to her Christian faith. Detwiler’s references to prayer and a broad belief that her body is a temple do not render her medical evaluation of the swabs religious. Such personal preferences are not entitled to Title VII protections.”

One member of the panel dissented, expressing concern that “Title VII’s generous and inclusive definition of ‘religion’ cannot be reconciled with the majority’s miserly approach.”

To read the opinion in Detwiler v. Mid-Columbia Medical Center, click .

Why it matters: The Ninth Circuit decision broadened a circuit split on the issue of whether courts must consider whether a nexus exists between a religious belief and the employee’s secular viewpoint, joining the Third Circuit and recognizing opposing authority from the Sixth, Seventh and Eighth Circuits. The issue may be ripe for Supreme Court review.