Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—9th Cir.: $7.8M jury verdict upheld in favor of former BART employees who objected to COVID-vax mandate, (Sep 14, 2026)

By Kathleen Kapusta, J.D.

“Title VII serves as a bulwark to protect the rights of conscience.”

Refusing to disturb a jury verdict awarding $7,824,580 to six former BART employees for the rapid transit system’s failure to accommodate their sincere religious objections to its COVID-19 vaccine mandate, the Ninth Circuit found reasonable a jury’s conclusion that the employees carried their burden under Title VII and FEHA and BART would not have suffered an undue hardship. Judge Nelson, who authored the opinion, also concurred separately to explain why the district court’s analysis on the employees’ free exercise claims was troubling (Lewis-Williams v. San Francisco Bay Area Rapid Transit District, No. 25-618 (9th Cir. Sept. 11, 2026)).

When the San Francisco Bay Area Rapid Transit District (BART) imposed a COVID-19 vaccination mandate in October 2021, it determined that of those who applied for a religious exemption, 70 qualified for a potential accommodation. It concluded, however, that it could not accommodate any of them without suffering an undue hardship and gave them an ultimatum to either become vaccinated or lose their job. Almost half of them chose the vaccine and 37 others resigned, retired, or were fired.

Lawsuit. In 2023, 35 former BART employees who had lost their jobs because of the mandate sued BART for failure to provide religious accommodation in violation of Title VII and the California Fair Employment and Housing Act (FEHA) as well as deprivation of their right to the free exercise of religion.

Lower court proceedings. The employees moved for summary judgment on all three of their claims and BART moved for summary judgment against their Free Exercise claim. After the district court granted BART’s motion and denied the employees’ motions, 18 plaintiffs dismissed their claims and 17 remained. The lawsuits of the remaining plaintiffs were then consolidated and scheduled for sequential trials in manageable groups.

The district court held a two-phase trial for the first group of employees. While the jury concluded that they established a prima facie case on their remaining claims, it deadlocked on the second phase on BART’s affirmative defense of undue hardship. The district court declared a mistrial on the affirmative defense and all but six plaintiffs settled and dismissed their claims against BART.

Jury verdict. The court then held a new trial with the first phase now addressing the undue hardship defense. The jury found BART had not established its affirmative defense and, in the second phase, it returned a verdict for the six employees, awarding them $7,824,580. The district court subsequently denied BART’s motions for judgment as a matter of law (JMOL) and a new trial.

JMOL. On appeal, BART first argued that the district court erred in denying JMOL because it proved its affirmative defense of undue hardship on the Title VII and FEHA claims. It contended that its reliance on guidance from public health authorities such as the CDC was dispositive for purposes of showing an undue hardship and further argued that any increase in safety risk resulting from an accommodation was an undue hardship. But this, said the court, conflicted with the Supreme Court’s holding in Groff v. DeJoy that an accommodation does not impose an “undue hardship” unless the burdens would be “substantial,” “excessive,” or “unjustifiable.”

Accordingly, the court continued, while an employer is not absolved of its burden of proving that an accommodation is unreasonable by merely showing that the accommodation has safety implications, it is ordinarily entitled to rely on the views of public health authorities, along with the best “objective, scientific information available.” The problem for BART, however, was that the public guidance it relied on was not in the record and it did not call any of the infectious disease experts or public health officials with whom its pandemic task force consulted when formulating its vaccination policy.

Though it offered the testimony of two after-the-fact litigation experts to establish the state of the public health guidance and the risks it would be taking by allowing unvaccinated employees to work in person, the jury, the court explained, “was not required to accept BART’s expert, non-percipient witness testimony as conclusive evidence of the scientific information that drove BART’s decision-making.” Accordingly, BART’s expert testimony did not establish that in-person alternatives to its vaccine requirement such as masking and social distancing would be unreasonable accommodations as a matter of law.

Employee roles. But even if in-person alternatives to vaccination were not per se unreasonable accommodations in the context of BART’s business, they could still impose an undue hardship considering either the nature of that business, the religious objector’s work duties, or some other factor or combination of factors, the court observed. But examining the pre-termination roles of the six employees here, the court noted that they did not have substantial and/or close contact with the public or other employees and there was no evidence suggesting that they would have been unable or unwilling to wear a mask or take other appropriate measures aimed at preventing transmission.

Explaining that it “was especially hesitant to upend a jury verdict that rests on an ‘undue hardship’ determination,” the court noted that such a determination is a fact-specific inquiry that is generally best suited for jury resolution. Noting that the jury resolved the factual disputes reasonably, the court found the district court did not err in denying BART’s motion for JMOL.

New trial. BART next argued it was entitled to a new trial because counsel for the six employees violated the district court’s order in limine excluding “evidence of requests for religious exemptions from employees who are not [or are no longer] plaintiffs in this action.” In excluding the evidence, the district court found its probative value was minimal and its introduction would “either unfairly prejudice BART or waste time and cause delay,” as it would be used “to support the inference that BART did not give genuine consideration to any of the exemption or accommodation decisions at issue.”

Motion in limine violations. The employees’ counsel, however, violated the order in limine once in cross examining the head of BART’s leave management team and twice in closing argument rebuttal. Each time, BART’s counsel objected and the district court sustained all three objections. Moreover, after the second violation, the court explained to the jury why the objection was being sustained and after the after the third, it instructed the jury to “disregard this argument” and no violations occurred during the first phase of trial when undue hardship was being adjudicated.

A violation of an order in limine, said the court, is only a basis for a mistrial when it “produced some effect on the jury’s verdict” or otherwise prejudiced the losing party. And here, given that the first phase of trial had occurred, the court found these violations could not have affected the jury’s undue hardship determination. Nor did BART suffer any apparent prejudice from the time wasted by these violations. Moreover, to the extent they had the potential to inflame the passions of the jury, the court presumed, absent a clear indication to the contrary, that the district court’s explanation and instruction to the jury cured the prejudicial effects of counsel’s improper comments. Accordingly, the district court did not abuse its discretion by denying a new trial.

Free exercise claim. Because it affirmed the jury’s verdict on the employees’ Title VII and FEHA claims, the court explained that it did not need to address the now-moot conditional cross-appeal of the order granting summary judgment for BART on the Free Exercise claim.

Concurrence. In a lengthy concurring opinion, Judge Nelson noted that while the majority did not address the Free Exercise claim, it was an issue recurring in the Ninth Circuit and elsewhere and he found the district court’s analysis on this claim troubling. While Judge Nelson noted that the district court concluded that BART’s review process did not violate general applicability under the U.S Supreme Court’s decision in Employment Division v. Smith because the review process did not allow “unfettered discretion permitting discretionary treatment of religion discussed in Fulton, Sherbert, and Smith,” he pointed out that the Ninth Circuit has “expressly rejected the district court's ‘unfettered discretion’ test.”

“The real problem,” he continued, “is that Smith is demonstrably erroneous” and “inconsistent with history and tradition.” “Smith has created problems for our jurisprudence. Because lower courts misunderstand how agency discretion systematically disfavors religious freedom, they apply Smith to deteriorate religious liberty. This disserves Americans by not vindicating their religious rights against policies not truly neutral and generally applicable. Worse, Smith does not track the original meaning of the Constitution. It is high time we return to the principles recognized by the Founding generation and vindicated by Lincoln’s. Smith was a mistake. And our jurisprudence will be better once it is corrected. In the meantime, lower courts should not extend Smith. We recognized as much in Fellowship of Christian Athletes. District courts in our circuit should hew more closely to our precedent.”

The case is No. 25-618.

Judge: Nelson, R.

Attorneys: Kevin Trent Snider (Pacific Justice Institute) for Tonya Lewis-Williams, Raymond Lockett, Rosalind Parker, Bradford Mitchell, Ryan Rivera, and Szucheng Sun. James M. Hanlon, Jr. (Glynn, Finley, Mortl, Hanlon & Friedenberg) for San Francisco Bay Area Rapid Transit District.

Companies: San Francisco Bay Area Rapid Transit District; BART

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