Labor & Employment Law Daily Wrap Up, EEOC NEWS—Commission reverses Bureau of Indian Education’s nondiscrimination findings in COVID vaccine religious non-accommodation complaint, (May 18, 2026)
By Brandi O. Brown, J.D.
“We are persuaded that the crucible of invasive gotcha-style questioning was a thinly veiled, and discriminatory, attempt to expose supposed hypocrisy and convince Complainants to recant their objections.”
At the end of last week, the Office of the Federal Sector of the EEOC issued a decision reversing the Bureau of Indian Education’s findings of nondiscrimination in response to complaints made by three employees whose COVID-19 vaccine exemption requests were officially denied. The Commission found the agency failed to meet its burden to establish by the preponderance of the evidence that testing and masking would have imposed an undue hardship. Moreover, the EEOC found the agency acted discriminatorily when it subjected complainants to an “unduly adversarial accommodation process.”
In late 2021, in response to an executive order, the Bureau of Indian Education ordered employees to obtain COVID-19 vaccinations. Three employees who worked at a high school in California requested exemption as religious accommodation, citing their religious belief in the sacredness of human life and their religious practice of refraining from using substances developed using human fetal cells obtained through abortion.
Questions. The employees were given a reprieve while their requests were considered, then they were each summoned to appear before a panel that asked each of them a series of questions about the religious belief upon which their exemption request was based. They were asked these questions:
Describe the religious belief that is the basis of your request for a religious exemption to the COVID-19 vaccination mandate.
When did you first fully subscribe to this belief or, how long have you held this religious belief?
Does your religious belief affect your receipt of medical treatment or forbid you from receiving certain medical treatments? What treatments must you refuse and why?
Does your religious belief affect your use of medications or forbid you from taking certain medications? Are there any overthe-counter medicines you must avoid?
Does your religious belief affect your receipt of vaccinations or forbid you from receiving any vaccinations? Why are they forbidden? As an adult, have you received any of these prohibited vaccinations? What vaccination(s) did you receive and when? Why is the COVID-19 vaccine different from other vaccines?
Please explain how the COVID-19 vaccination requirement conflicts with your religious belief.”
Form and stipulation. Each complainant also had to review and sign a form with “information to ensure your understanding of how commonly fetal stem cells are used in the testing and development of everyday medications.” That form listed 23 medications and stipulated:
“My signature below indicates that I received a copy of this document, Additional Information Related to the Use of Fetal Stem Cells, read through it in its entirety, and fully understand how fetal stem cells were used in the development of the listed medications. I acknowledge that the reason(s) for my sincerely held religious belief regarding COVID19 vaccines also applies to the listed medications since they also used fetal cell lines in their development or testing.”
Although the agency concluded that receipt of the vaccine did conflict with each employee’s sincerely held religious belief and practice, it concluded that any accommodation would impose an undue hardship because of the risk of infection and the cost of testing per unvaccinated employee.
Two months after they lodged their accommodation requests, the employees were told they had been denied and that they had two weeks to get their first vaccine dose. They were told that non-compliance would result in discipline and eventual termination. Nevertheless, there was no evidence that the agency initiated any disciplinary actions against them. The month after the decision, a federal district court in Texas issued a nationwide injunction against the executive order. The employees continued to work at the school, where they were masked and regularly tested.
The employees filed formal EEO complaints and after receiving a final decision from the agency, which determined there had been no discrimination, they appealed. Their appeals were consolidated.
The EEOC reversed and remanded the matter to the agency with instructions to provide the employees with appropriate relief.
Claim stated under Muldrow. The EEOC rejected the agency’s conclusion that the employees did not state a claim for relief because they were never formally disciplined or terminated. “The factual contention is true, to a point,” the EEOC explained, “since the Agency’s plans to terminate Complainants were cut short by nationwide injunction. We do not agree, however, that the district court’s fortuitous intervention deprives Complainants of a cause of action. There is ample evidence to establish that Complainants had already suffered redressable injuries because of the Agency’s actions before the district court intervened.”
In the Ninth Circuit, where the cases arose, that court has long held that a reasonable religious accommodation denial, when followed by threatened discipline, is sufficient to state a claim. Moreover, in Muldrow v. City of St. Louis, the EEOC added, the Supreme Court clarified that a plaintiff need only establish “some injury respecting... employment terms or conditions” and that it need not be significant, serious, or substantial.
The Commission explained that it did not need to determine what the bare minimum is that is required under Muldrow. “Whatever Muldrow’s floor,” the Commission concluded, “the circumstances here rise well above it. Complainants were made to undergo an unduly intrusive interrogation of their religious beliefs. Their requests for accommodation were formally denied. And they were threatened with the virtual certainty of eventual termination. The circumstances clearly exceeded “some injury” to Complainants’ employment.”
Waiting for the other shoe. As for the fact that the agency never made good on its threat to discipline or terminate the employees, the Commission explained that it “cannot ignore that the Agency made it clear to Complainants they would eventually be terminated for their non-compliance.” The court’s “belated intervention” with regard to the executive order did not absolve the agency from its legal obligations, the Commission wrote. “It was still the case that Complainants went more than a month, from the time their requests were formally denied to the issuance of the nationwide injunction, waiting for the other shoe to drop. Under the unique circumstances here, this amounts to an actionable denied accommodation.”
The Commission also was unpersuaded by the undue hardship argument made by the agency, noting that it is an affirmative defense where the agency bears the burdens of production and persuasion and that the agency failed to provide evidence to support its claim that testing and masking were materially less effective. It also failed to provide evidence for how it calculated its yearly cost numbers or why it could not use funds that were available under the CARES Act, which is what it actually ended up using to purchase tests for unvaccinated employees.
Discriminatory process. Finally, the EEOC concluded that the agency’s “general handling of religious-based accommodation requests related to the vaccine” was discriminatory.
“The process the Agency imposed was adversarial to the point that we can persuasively infer an underlying discriminatory, even disdainful, motive. The Agency singled out employees with religious objections related to the use of human fetal cells for particularly disfavored treatment. They were summoned to an inquisitorial panel to be quizzed and lectured on their medical history and knowledge of other medicines derived from human fetal cells. We are persuaded that the crucible of invasive gotcha-style questioning was a thinly veiled, and discriminatory, attempt to expose supposed hypocrisy and convince Complainants to recant their objections. Even if the Agency had in the end formally granted Complainants’ requests for accommodation, we would find an independent Title VII violation based on this discriminatory process.”
The EEOC ordered the agency to undertake a supplemental investigation and issue new final decisions, including those relating to potential compensatory damages. Other measures are required under the decision, including that responsible management officials are required to complete training.
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