Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D.C. Cir.: Black employees get another chance to show that union’s vaccine policy disproportionately impacted them, (Apr 21, 2025)

By Ronald Miller, J.D.

Tight deadlines to receive a vaccine or speak with a doctor or religious leader about an accommodation had a greater impact on Black employees who are the most vaccine hesitant group due to documented medical experimentation on them.

The D.C. Circuit reversed a lower court’s dismissal of claims of racial disparate impact and discriminatory treatment in a suit brought by two African-American employees of a union who alleged that the union’s COVID-19 vaccination policy overly impacted African-Americans employees. According to the employees, the union adopted a COVID-19 policy that accorded most Black employees significantly less time to comply or seek an accommodation than most white employees and provided fewer resources to assist them in resolving vaccine concerns despite knowing their racial group was far more likely to be vaccine hesitant than whites. The appeals court concluded that race was a motivating factor in their termination which “nudged” their discriminatory treatment claims from “conceivable to plausible” (Shanks v. International Union of Bricklayers & Allied Craftworkers, No. 23-7141 (D.C. Cir. Apr. 18, 2025)).

COVID protocols. In response to the COVID-19 pandemic, the union, as an employer, announced safety and health protocols regarding vaccines in a June 6, 2021, email. The plan stated the union would resume full in-office work beginning September 7, 2021. Employees were encouraged to “[c]onsider getting a COVID-19 vaccine as soon as you can.” The plan also stated that essential business travel would be resumed and that proof of vaccination would be requested before engaging in business travel.

The plaintiffs in this action were an uncle and niece who both worked for the union. The uncle worked in accounting for over 20 years and alleged discrimination based on his disability, race, color, and sexual orientation. He alleged that the union subjected him to a hostile workplace due to those characteristics and retaliated against him for his workplace advocacy. His niece alleged wrongful termination, retaliation, and discrimination by the union based on her race, religion, and gender in violation of Title VII.

According to the plaintiffs, employees who engaged in business travel for the union, who were mostly white, were on notice as of June 6 that they were required to get the COVID-19 vaccine. By contrast, employees whose duties did not include business travel, who were mostly Black, were not required to get vaccinated.

Vaccination requirement. On August 19, 2021, the union announced a revised COVID-19 policy. It stated “all employees will be required to be fully vaccinated against COVID 19” by October 4. Any employee not fully vaccinated would be suspended without pay for one week, and an employee who failed to provide proof of being “fully vaccinated” after that week would “be terminated.” Employees had until September 13 to request an accommodation for reasons of disability or a sincere religious belief.

Racial disparity. On October 4, the uncle sent emails to union officials, stating that the COVID-19 mandate will “overly affect” Black employees in comparison to other groups. He noted the tight deadlines to receive a vaccine or speak with a doctor or religious leader about an accommodation, the need for an interim testing option, and that Black Americans are the most vaccine hesitant group due to documented medical experimentation on them. After notifying the union that they were not vaccinated, the plaintiffs’ access to their email accounts were blocked, they were suspended without pay and were ultimately fired.

In their allegations of discrimination before the D.C. Circuit, the plaintiffs focused on the union’s two-stage roll-out of the COVID-19 vaccination policy. They claimed this had a disparate impact on them as Black non-traveling employees and resulted in their discriminatory treatment. According to the plaintiffs, as a result of the union’s COVID-19 policy, six employees (five of whom were Black) were suspended and three Black employees were fired.

Disparate impact claim. For a disparate impact claim, “a plaintiff must generally ‘demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group.’” At the motion to dismiss stage, a plaintiff must plausibly allege that a disparity exists and identify a practice or policy that plausibly caused the disparity.

In their complaints, the employees identified a specific employment policy in the union’s COVID-19 vaccination policy, which was implemented at different times and with different informational resources for traveling and non-traveling employees, even though both groups of employees had to comply by the same vaccination and accommodation request deadlines.

The union’s two-stage roll-out of the COVID-19 policy meant there were different procedures for traveling and non-traveling employees that made complying with the COVID-19 mandate more difficult for the non-traveling employees, a majority of whom were Black. While 75 percent of white employees had 118 days to comply with the policy, only 11 percent of Black employees were accorded that amount of time and information. Thus, Black employees had far less time to comply with the COVID-19 policy and less information to assist them in resolving their concerns about the vaccines. Black employees were adversely affected at a rate nearly seven times that of white employees.

Accommodation. Additionally, non-traveling employees were afforded far less time to apply for an accommodation: just 25 days as opposed to as much as 99 days for traveling employees. The union denied a representative of these mostly Black employees a timely meeting to explore extending the September 13 deadline for requesting accommodations.

Causation. The district court found that the first employee “failed to plead facts that plausibly allege that he was terminated for reasons other than his violation of the Policy,” and that the second employee failed to request an accommodation.

However, the appeals court noted that employees’ theory of the case was that the union’s vaccine policy imposed a race-related barrier because, due to a history of discrimination and mistreatment by the medical establishment, Black Americans are more likely than whites to be skeptical of vaccines. Moreover, the union held a webinar aimed at addressing such vaccine hesitancy. These allegations frame vaccine hesitancy as the result of historical inequalities of which the Union was aware.

In sum, the employees’ allegations of disparate impact were neither deficient because conclusory “bare assertions,” nor contrary to the law on causation.

Adverse employment action. The union justified its August 19, 2021, COVID-19 policy mandating vaccines as one of “the steps necessary to keep [the] workplace safe” upon the “return to full on-site operations.” As of July 31, 2023, the union still had not returned to full on-site operations. Viewed contextually, the allegations on which the employees relied for an inference that race was a motivating factor in the termination of their employment “nudged” their discriminatory treatment claims from “conceivable to plausible,” according to the appeals court.

Accordingly, the appeals court reversed the district court order on claims of racial disparate impact and discriminatory treatment.

The case is No. 23-7141.

Judge: Rogers, J.

Attorneys: Samuel Shanks, pro se. Caitlin Kekacs (Bredhoff & Kaiser) for International Union of Bricklayers and Allied Craftworkers.

Companies: International Union of Bricklayers and Allied Craftworkers

Cases: Discrimination RaceDiscrimination SexDiscrimination ReligiousDiscrimination Labor Covid19 DistrictofColumbiaNews GCNNews