Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—D. Colo.: Denver employee failed to adequately request accommodation to COVID vax mandate, (Jan 31, 2025)

By Kathleen Kapusta, J.D.

“Providing some form of adequate notice to an employer is especially important in the context of religious accommodations since a person’s religion and an associated need for an accommodation may not be as apparent as with other protected characteristics.”

An employee of the City and County of Denver who, in an unsigned statement on his employer’s religious exemption request form for its COVID-19 vaccination mandate, wrote that “the devil has servants everywhere and has been coordinating efforts to bring down the population to a ‘sustainable’ level,” and that he did not consent to anything the form stood for, failed to convince a federal court in Colorado to deny his employer’s motion for summary judgment on his Title VII religious discrimination claim. His various statements on the form, said the court, rendered it anything but a “direct and specific” request for an accommodation (Higgins v. City and County of Denver, No. 23-cv-00243-PAB-KAS (D. Colo. Jan. 30, 2025)).

In March 2020, Denver’s mayor declared a state of emergency in the city and county in response to the COVID-19 pandemic. In August and September 2021, the Denver Department of Public Health and Environment issued two public health orders requiring all Denver employees to be fully vaccinated by a specified date.

The orders also specified a deadline for submitting a religious or medical exemption request to the vaccination mandate and prior to that deadline, Denver sent 11 email reminders to its employees. Denver ultimately granted 237 of the 297 religious exemption requests it received.

Government overreach. Fifty minutes before the deadline, the employee submitted an unsigned religious exemption request form along with an attached statement in which he wrote that he was using the “form as merely a means to identify who I am and I do not consent to anything the form stands for, nor is this considered a submission as this is classified as government overreach.”

He also stated that “the devil has servants everywhere and has been coordinating efforts to bring down the population to a ‘sustainable’ level,” that “revelations speaks of the mark of the beast,” and that “graphene oxide [in graphene lipid nanotechnology] can connect artificial intelligence and human tissue, rewrite your DNA, and make it impossible to separate yourself from this mark.” In addition, the employee noted his concerns about “gene therapy” disguised as vaccines; efforts by the United Nations to reduce the world population, and theories that drug companies and China were funding Denver’s vaccine mandate endeavor.

Terminated. The following day, Denver denied his exemption request. Several weeks later, it informed him that he would be terminated unless he signed an agreement to get the vaccine. He was fired when he refused.

Failure to accommodate. Addressing only the second element of the employee’s Title VII failure-to-accommodate claim—notice to the employer of the conflict between the workplace requirement and the employee’s religion—the court noted that while there are no magic words an employee must use, an accommodation request must still be sufficiently direct and specific. Further, said the court, “Although an employer’s obligation to engage in the interactive process is broad, the obligation is not so broad as to require an employer to ignore its employee’s own words.”

And here, the court observed, while the employee acknowledged receiving emails and instructions from Denver regarding both the vaccine mandate and the exemption request requirements, he did not follow those requirements. Noting that he instead told Denver his statement was not a “submission” of the form, the court found his statement did not adequately notify Denver of a request for a religious accommodation. Accordingly, it granted summary judgment against this claim.

Retaliation. Regarding the employee’s retaliation claim, the court found it needed to address only the first element—protected opposition to discrimination. While protected activity can include requesting a reasonable accommodation, a request that does not trigger an employer’s duty to provide an accommodation or engage in the interactive process is not protected activity. Because the employee here did not adequately notify Denver that he was seeking an accommodation, he did not engage in protected activity, said the court, granting summary judgment against this claim as well.

The case is No. 23-cv-00243-PAB-KAS.

Judge: Brimmer, P.

Attorneys: David L. Willson (Disabled Rights Advocates) for Patrick Higgins. Margaret C. Tharp, Denver City Attorney's Office, for City and County of Denver.

Cases: ReligiousDiscrimination Discrimination Discharge Covid19 PublicEmployees Retaliation ColoradoNews