Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—8th Cir.: Employee who objected to COVID vaccine requirements may proceed with religious discrimination claims, (Jun 6, 2025)

By Nicholas Kaster, J.D.

The Eighth Circuit found that the employee plausibly pled constructive discharge.

An employee who resigned in objection to Hennepin County’s COVID vaccine requirements may bring religious discrimination claims under Title VII and the Minnesota Human Rights Act (MHRA), the U.S. Court of Appeals for the Eighth Circuit has ruled, reversing and remanding the decision of a federal district court (Brokken v. Hennepin County, No. 24-1914 (8th Cir. June 5, 2025)).

COVID policy. In response to the COVID-19 pandemic, Hennepin County, Minnesota, announced and implemented a vaccine and testing policy that required employees to either obtain a COVID vaccine or test weekly.

Religious exemption. The employee requested a religious exemption from vaccination and testing. After initially granting an accommodation, the County revised its policy and told the employee that “if she did not test she would be terminated” and “if she was terminated for refusing to test, the termination would be a specific type of termination, where it would be likely that she would lose such benefits as her banked vacation time, sick time, and comp time.”

Lawsuit. Subsequently, the employee sued the County, alleging religious discrimination in violation of Title VII of the Civil Rights Act and the MHRA, and wrongful discharge in violation of Minnesota’s Refusal of Treatment statute (Minn. Stat. § 12.39). A district court dismissed the claims, ruling that: (1) the employee failed to plead an adverse employment action; (2) she failed to plausibly plead religious beliefs that conflict with the County’s COVID-19 policy; (3) the MHRA does not provide a cause of action for failure to accommodate religious beliefs; and (4) Section 12.39 does not create a private right of action. This appeal ensued.

Adverse employment action. Each of the employee’s claims required that she experience an adverse employment action. The employee pled that she “retired under duress.” The County told her they would terminate her for refusing to test, and it “would be a specific type of termination, where it would be likely that she would lose such benefits as her banked vacation time, sick time, and comp time.” She had banked more than 1,285 hours. The threat of losing compensation for those hours—no matter the amount—was a “disadvantageous change,” the Eighth Circuit found.

Constructive discharge. The County argued that the employee had to meet a higher standard for constructive discharge, which she failed to meet. The appeals court disagreed.

Here, the employee alleged that she faced a choice between violating her sincerely held religious beliefs by complying with the testing requirement and termination, which would mean the likely loss of significant accrued benefits. A reasonable person would have felt compelled to resign, the appellate court said. And the employee actually resigned. Thus, the Eighth Circuit found that the employee plausibly pled constructive discharge.

Religious discrimination. Next, the court addressed the employee’s Title VII claims for religious discrimination and failure to accommodate. The district court had dismissed these claims, ruling that she failed to plead a sincerely held religious belief that conflicted with the County’s vaccination and testing requirement.

The employee’s complaint connected her objection to vaccination and testing to specific religious principles. She pled that she “believes that she must treat her body as Temple, and each person has the right to choose what he or she will put into their body, based on free will.” Due to this belief, she “strives to control what she puts into her body, and assiduously attempts to keep toxins out of her body.” These “firmly held beliefs” connected to her objection to the COVID vaccine, which is “injected” into the body.

In addition, she pled “her religious beliefs do not allow her to provide her DNA or other biological materials by force or coercion” because the “use and possession of her biological materials has been granted to her by her Creator.” These beliefs connected to her objection to testing, which “involves transporting her material... or mixing her biological materials with serum taken from fetal bovines (calves).” Thus, the employee satisfied her burden of pleading that her alleged religious beliefs conflicted with her employer’s policy, the Eighth Circuit held.

Disparate treatment. The district court also rejected the employee’s disparate treatment claims because the County’s mandate applied to all employees. But “courts generally do not inquire about comparators until summary judgment,” the appellate court noted. The court said that “[w]e must grant all reasonable inferences in [plaintiff’s] favor and cannot assume at this early juncture that religious discrimination did not occur because one subset of potential comparators also faced disparate treatment.” Thus, the Eight Circuit reversed and remanded the dismissal of the employee’s Title VII claims.

MHRA claim. For the same reasons, the County argued that the employee failed to plead religious discrimination in violation of the MHRA. The MHRA makes it unlawful for an employer to discharge or discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment because of religion (among other factors). The same analysis applies to both MHRA and Title VII claims.

The district court dismissed the employee’s MHRA claim, concluding the MHRA did not include a cause of action for failure to accommodate. Since then, the Eighth Circuit has held “the Minnesota Supreme Court would decide that the MHRA provides protection against failures to accommodate religious beliefs.” Because the employee plausibly pled religious discrimination in violation of Title VII, she also plausibly pled religious discrimination in violation of MHRA. Thus, the district court’s dismissal of the employee’s MHRA claim was also reversed and remanded.

Refusal of Treatment statute. The employee argued that the County violated Minnesota’s Refusal of Treatment statute by requiring her to vaccinate and/or test. The statute, however, does not create a private right of action. It provides that “individuals have a fundamental right to refuse medical treatment, testing, physical or mental examination [and] vaccination....”

Two Minnesota district courts have rejected a private right of action under Section12.39 in the COVID-19 vaccine context. They relied on state precedent: “A statute does not give rise to a civil cause of action unless the language of the statute is explicit or it can be determined by clear implication.” A right of action that does not exist at common law cannot be created from regulatory statutes that do not expressly or impliedly identify a statutory right of action. Further, when a statute expressly provides a particular remedy, plaintiffs do not have an implied private right to sue.

Section 12.39 does not expressly, nor by clear implication, identify a statutory right of action, the appeals court noted. In fact, the statute itself has a particular remedy: “a person who willfully violates a provision of this chapter... is guilty of a misdemeanor and upon conviction must be punished by a fine not to exceed $1,000, or by imprisonment for not more than 90 days.” Because Section 12.39 does not create a private right of action, the district court properly dismissed the employee’s claim, the Eight Circuit ruled.

The case is No. 24-1914.

Judge: Benton, D.

Attorneys: Gregory Martin Erickson (Mohrman, Kaardal & Erickson) for Petra Brokken. Katlyn J. Lynch, Hennepin County Attorney's Office, for Hennepin County.

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