Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—2d Cir.: Court updates prima facie test, requires showing of employer’s motivating factor, (Jul 16, 2026)

By Todd Harrison, J.D.

Its prior rule, which required an employee to request an accommodation and did not expressly require a showing of employer motive, was abrogated by the Supreme Court in Abercrombie.

Vacating a district court’s grant of partial summary judgment in favor of an employee on her Title VII religious discrimination claim, the Second Circuit determined that the district court had failed to modify the prima facie test for failure-to-accommodate religion claims in light of the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015). Post-Abercrombie, a plaintiff does not need to actually request an accommodation but does need to show that their need for an accommodation was a motivating factor in the employer’s decision. The appellate court also found that the district court had improperly deemed portions of the discovery record to be judicial admissions (Bergin v. New York State Unified Court System, No. 25-721 (2d Cir. July 15, 2026 amended Sept. 15, 2026)).

Working as a court officer for the New York State Unified Court System, the employee was informed in September 2021 that she would be required to receive a COVID-19 vaccination or obtain a religious or medical exemption to remain at work.

Exemption review. When it began reviewing religious exemption requests, the employer realized that most applicants expressed concerns about fetal stem cells or the sanctity of their body. However, many of the objections did not provide sufficient information to adequately address whether the applicant adhered to their beliefs consistently with regard to other vaccines and medical treatments. Thus, it developed a supplemental form split into two sections, with the first asking about stem cells and the second asking about past medical treatments and vaccine use.

The employee submitted a religious exemption request that included a statement that forcing her to submit to the vaccine would violate her religious beliefs, a list of scripture verses, and a letter from her pastor objecting to the vaccine based on its development using fetal stem cell lines. The employer asked the employee to complete the supplemental form, which she did, albeit without answering most of the questions.

After her request was denied, the employee submitted a new copy of the supplemental form with the required fields filled in. The employer stated its decisions were final. The employee was placed on administrative leave after the vaccine deadline had passed and was eventually terminated. She was later reinstated once the vaccine requirement was rescinded.

Lawsuit. Prior to her reinstatement, the employee filed this lawsuit asserting a single count under Title VII’s disparate treatment provision, contending that the employer failed to accommodate her religious belief in denying her exemption request. The employer moved to dismiss, arguing the employee had failed to establish a prima facie case. The district court denied the employer’s motion.

Discovery largely concerned the employer’s knowledge of the sincerity of the employee’s religious objection, as discussed in interrogatories and in the deposition of its chief of administration. Both parties then moved for summary judgment. The district court entered partial summary judgment for the employee, holding she established her prima facie case, and the employer did not establish an undue hardship defense.

According to the district court, its holding rested largely on the employer’s purported admission that the employee’s initial exemption request “was ‘perfectly adequate’ and ‘explained a religious belief.’” The parties stipulated to an amount of damages, and this appeal followed.

Philbrook. First, the court addressed whether the employee had made a prima facie case. In Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476 (2d Cir. 1985), the Second Circuit originally defined the prima facie case to require a plaintiff to demonstrate that: “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement.”

Concluding that the employee made out a prima case under this standard, the district court partially granted her motion for summary judgment and denied the employer’s motion for the same. This was error, argued the employer, because the Supreme Court changed the requirements of the prima facie case in Abercrombie. The court agreed.

Abercrombie. In Abercrombie, the Supreme Court considered whether an employer violated Title VII when it refused to hire a prospective employee who the employer assumed would require a religious exemption from the employer’s dress code. The Tenth Circuit, applying a test identical to the one followed by the Second Circuit, held that the employer was entitled to summary judgment because the plaintiff had not actually requested a religious accommodation, and the employer’s mere speculation did not amount to discrimination. Not so, said the Supreme Court.

Rejecting the Tenth Circuit’s requirement that a plaintiff actually request an accommodation, the Supreme Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” Thus, explained the court here, the Supreme Court rejected one requirement of its old rule—that a plaintiff inform an employer of the need for an accommodation—and clarified that what a plaintiff must plead, and ultimately prove, is that the employer was motivated in part by the desire to avoid offering a religious accommodation.

Prior cases. The employee asserted several reasons for why the Second Circuit should deviate from the Supreme Court’s version of the prima facie test as articulated in Abercrombie. First, she argued that the Second Circuit’s prior cases should control. The court was not moved, explaining that if the Supreme Court has broken the link on which it had premised a prior decision, its duty to follow Supreme Court precedent overrode its duty to follow its own.

That was the case here, continued the court, finding that its prior rule—which included an employer-knowledge requirement and did not expressly require a showing of motive—was abrogated by Abercrombie. Accordingly, Philbrook’s statement of the prima facie case of failure to accommodate religion under Title VII was no longer good law, said the court.

Ten years. Next, the employee pointed out that “in the ten years since Abercrombie, this Court has not endorsed the view that Title VII accommodation claims require plaintiffs to prove discriminatory motive as part of their prima facie case.” The court responded that this was because it had yet to confront an appeal in which Abercrombie’s effect on the prima facie case made the difference.

“Just as our pre-Abercrombie cases need not control, the absence of precedent in the years since does not bind us now,” said the court.

Hiring and firing. Finally, the employee argued that Abercrombie was confined to the failure-to-hire context and thus did not govern her wrongful-termination claim. However, the court noted that such an argument runs headlong into the statutory text, which treats hiring and firing alike. Further, the Supreme Court made no such distinction in Abercrombie.

Because the employee’s argument on this point was effectively asking the court to read a special rule for hiring into Title VII, adding words to the law to achieve a desirable result, the court rejected her argument.

In sum, the court held, as required by Abercrombie, that to state a prima facie case of failure to accommodate a religious belief or practice under Title VII, a plaintiff must demonstrate: (1) that she actually required an accommodation of her religious practice; and (2) that the employer’s desire to avoid the actually required prospective accommodation was a motivating factor in (3) an adverse employment decision.

Although knowledge of the need for an accommodation may be evidence of motive, the absence of such evidence is not—as held by the court’s pre-Abercrombie cases—dispositive. Because the district court explicitly declined to apply this standard, the appellate court vacated its judgment and remanded for further proceedings.

Judicial admission. On remand, the district court was instructed to reassess whether summary judgment in favor of either party was appropriate under the Abercrombie standard. In doing so, it may treat evidence of the employer’s knowledge of the employee’s need for religious accommodation as relevant to, but not necessarily dispositive of, the employer’s motive to deny the accommodation. The appellate court did not agree, however, that during discovery the employer made a judicial admission that the employee communicated a sincerely held religious belief in conflict with the vaccine mandate.

In viewing the employer’s statements in the light most favorable to the employer, the Second Circuit found that it could not conclude as a matter of law that they constituted a judicial admission that the employee’s application raised a sincere religious objection to the vaccine mandate. To the contrary, the court noted that the employer repeatedly emphasized that it required additional information to determine whether the employee was sincere in her objection to the COVID vaccine.

The court stated that it professed no view on whether the record as a whole creates a genuine dispute about the employer’s knowledge, nor whether such knowledge would be sufficient to create an inference of discriminatory motive. Nor did it weigh in on the import of an employee’s failure to challenge an employer’s vaccine exemption procedure generally, and how that failure might bear on their ability to show discriminatory motive. The appellate court explained that it felt it appropriate for the district court to address these questions in the first instance, holding only that the district court should not have treated the employer’s isolated statements about the employee’s initial exemption requests as dispositive judicial admissions.

The case is No. 25-721.

Judge: Nathan, A.

Attorneys: Steven M. Warshawsky (Law Firm of Steven M. Warshawsky) for Jessica Bergin. Michael Siudzinski, NYS Office of Court Administration, for New York State Unified Court System.

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