Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGION—S.D. Ohio: In COVID-19 case, EEOC must provide claimant’s vaccine history, certain medical records, (Apr 15, 2025)

By Marjorie Johnson, J.D.

The agency’s own guidance states that whether an employee “has behaved in a manner markedly inconsistent with the professed belief” can be a factor that “might undermine an employee’s credibility” as to sincerity of the belief.

In a Title VII lawsuit brought by the EEOC challenging United Healthcare Services, Inc.’s termination of an employee after denying her request for a religious exemption to its COVID-19 vaccine mandate, a federal magistrate judge ordered the agency to respond to discovery requests seeking information related to any vaccines the employee had received as an adult, medications she had rejected because of the religious beliefs alleged in this lawsuit, and certain medical records. Granting in part the parties cross-motions to compel discovery, the court also found that the EEOC was entitled to more comparator information than the employer provided relating to 414 employees, but ordered the parties to compromise on ways to narrow the scope of the discovery requests (EEOC v. United Healthcare Services, Inc., No. 2:23-cv-3010 (S.D. Ohio Apr. 10, 2025)).

Religious exemption denied. The EEOC brought this lawsuit on behalf of a former supervisor of clinical administration at United Healthcare Services, Inc. (UHC) who was denied her request for a religious-based exemption to the COVID-19 vaccination mandate and terminated when she refused to comply. The EEOC alleged that the claimant was a full-time telecommuter, and that her sincerely held religious beliefs conflicted with her understanding that the COVID-19 vaccines “were developed or tested using cell lines derived from aborted fetuses.” At issue were several discovery disputes between the parties.

Vaccination history, medical records. In particular, UHC sought to compel the EEOC to identify and provide documents concerning any vaccines the claimant had received as an adult. It also asked the agency to identify “each and every medication, vaccine, food item, cosmetic product, and other product” that she had rejected because of her religious beliefs and to produce all medical records since she turned 18.

Relevancy. The court agreed that this discovery was relevant to the EEOC’s prima facie showing that the claimant’s sincerely held religious belief conflicted with the COVID-19 vaccine policy. Indeed, the EEOC’s own guidance states that factors that “might undermine an employee’s credibility” as to sincerity could include whether the employee “has behaved in a manner markedly inconsistent with the professed belief.” As such, courts have allowed discovery of vaccination or medical records in similar circumstances.

Proportionality. The EEOC argued the discovery requests invaded the claimant’s privacy by seeking confidential and sensitive health information “for her entire adult life.” But by arguing that her sincerely held religious beliefs required her to decline certain medical treatments, the EEOC put at least some of her medical history at issue, and the protective order protected her privacy interests. While the agency also argued that any medical treatment or vaccine records before 2020 were irrelevant to her sincerely held religious beliefs at the time she refused the COVID-19 vaccine since prior to that she did not know that any vaccines or other drugs could be developed or tested using aborted fetal cell lines, this was another credibility issue.

Limitations. Ultimately, the court ordered the EEOC to respond to the discovery, with certain limitations. For example, although the employer sought information about any products she rejected because of her religious beliefs generally, the court ordered production of discovery related to products she rejected because of her religious beliefs alleged in this lawsuit. The court also ordered the parties to “meaningfully confer” on the scope of the request for a vast array of medical records, as the scope was “potentially disproportional to the nature of this suit.”

Statement on aborted fetal cell lines. Another discovery dispute involved the EEOC’s bid to compel the employer to produce discovery regarding it’s alleged “admissions about the role of aborted fetal cell lines in the testing and development of COVID-19 vaccines,” made in a document that contained “executive responses” to “employee questions” about the vaccine policy. The EEOC sought detailed information concerning an emailed question about data behind “involvement of fetal tissue in development of the COVID vaccines(s)” and the employer’s response, which stated, among other things, that “fetal cell lines are not the same as fetal tissue,” and that “while lab-replicated fetal cell lines” were used during the testing and production process, “the vaccine itself does not contain any fetal cells.” While the court declined to take a position on the EEOC’s contention that the document constituted an “admission,” it ordered the parties to “negotiate further search terms and/or custodians” relevant to the discovery requests.

“Individual discovery.” The EEOC also sought “individual discovery” related to other UHC employee’s exemptions or exclusions to the COVID-19 vaccination policy. The employer contended that it already produced some information about 201 employees who submitted requests for exemptions and details regarding the types of in-person contacts that determined whether they were subject to the vaccination requirement. It also produced information about 213 employees who were outside of the scope of the vaccination policy “because their roles did not require in-person interaction with other people.”

The employer argued that it did not need to provide more details about these 414 identified employees because they were not similarly situated to the claimant. However, “[w]hile Defendant remains free to maintain that none of the identified employees are similarly situated down the road, its argument does not put discovery of these employees out of reach today,” stated the court. Moreover, UHS’s treatment of other employees who sought exemptions or were excluded from the policy was relevant to whether accommodating the claimant would place an undue hardship on the company.

Thus, the court concluded that at least some “individual discovery” was proportional to the needs of this case, such as details about the identified employees’ in-person contacts and the employer’s decision-making process in handling exception requests or exclusions. But since the employer’s concerns about the time and expense of responding to these detailed requests for 414 people had merit, the court ordered the parties “to confer on this request and compromise on ways to narrow its scope.”

The case is No. 2:23-cv-3010.

Judge: Jolson, K.

Attorneys: Taylor Marie Hilton for the EEOC. Daniel R. Birnbaum (Seyfarth Shaw) for United Healthcare Services, Inc.

Companies: United Healthcare Services, Inc.

Cases: ReligiousDiscrimination EvidenceDiscovery Discrimination Discharge Covid19 OhioNews