Is Veganism a Religion Under Anti-Discrimination Law? An Ohio Federal District Court Says Perhaps

Posted in: Civil Rights

In December 2010, the Cincinnati Children’s Hospital Medical Center fired Sakile S. Chenzira, a Customer Service Representative, for refusing to get a seasonal flu vaccination, in violation of the hospital’s policy.  Ms. Chenzira had refused the vaccine because she is a vegan, and the vaccine is produced in chicken’s eggs, which are taken from animals and therefore are not vegan.

After being fired, Ms. Chenzira brought a lawsuit in federal court against the hospital, alleging—among other claims—that her termination violated her federal right under Title VII of the 1964 Civil Rights act to be free from religious discrimination.  The defendant moved to dismiss the claim, arguing that veganism does not qualify as a religion that triggers the protection of the law.

In a move that some have found surprising, a federal district court in the Southern District of Ohio denied the defendant’s motion to dismiss the case, concluding that a vegan may, depending on the evidence, have a legal ground for claiming that her veganism qualifies for the same protection as a sincerely held religious belief.  In this column, I will examine the district judge’s decision and explain what it does and does not say about the plaintiff’s decision to refuse a flu vaccine.

What Is a Vegan?

To have an informed discussion of whether a vegan is sufficiently comparable to a practitioner of Christianity or Islam to trigger the protection of a law prohibiting religious discrimination, it is important first to understand what it means to be a vegan.  Like practitioners of traditional religions, vegans have diverse ways of living and of manifesting their commitment to veganism.  Most ethical vegans do, however, share a commitment to the proposition that it is wrong to inflict suffering and death on animals in order to meet needs that can be met in other ways.

More concretely, this means that ethical vegans choose (a) to consume a plant-based diet, avoiding the flesh and bodily secretions (such as milk and eggs) of nonhuman animals, including cows, chickens, and fishes; (2) to wear exclusively non-animal-based clothing in lieu of fur, leather, wool, and other materials derived from the exploitation (and virtually always the slaughter, when animals outlive their utility to humans) of animals; and (c) to use body care products, such as shampoo, soap, and deodorants, that are derived from non-animal sources and that were safety-tested without the use of animals.

On the question of medications and vaccines, ethical vegans take different positions, and most acknowledge that the issue is far more difficult than the question whether to buy chickens’ eggs or cows’ milk yogurt at the supermarket.  Though the vaccine is not a vegan product, some vegans might take the view that in the absence of a vegan alternative vaccination, the existing flu shot is necessary to the vegan’s own or to others’ health.

For similar reasons, a vegan who is sick and needs a medication that is currently available only in a form that contains animal ingredients might conclude that necessity permits the use of the medication.  At the present time, U.S. law also requires that all medications in the United States be tested on animals, and many are synthesized with non-vegan additives, so vegans often lack the option of taking a vegan version of the medicine.  When health or safety is at risk and alternatives are unavailable, some people who consider themselves ethical vegans will take a non-vegan medicine, while others will not.

What Is a Religion?

The next question to confront, in determining whether veganism qualifies as a religion under Title VII, is this one:  What is a religion?  Some religions are old and thus long-recognized as religions, including the well-known families of religion that go under the headings of Buddhism, Hinduism, Judaism, Christianity, and Islam.  A member of one of these faiths may encounter little resistance in claiming, in an anti-discrimination legal action, that he or she is a member of a religious group.

Under the Code of Federal Regulations relevant to the definition of religion under federal anti-discrimination law, “[i]n most cases whether or not a practice or belief is religious is not at issue.  However, in those cases in which the issue does exist, the [Equal Employment Opportunity] Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Though readers may associate religion with a belief in God, a person can in fact be a very committed practitioner of a religion without actually believing in any supernatural beings.  Indeed, some established religions – such as Buddhism – do not necessarily even entail belief in such a being at all.  Growing up as an Orthodox Jew, I learned that my religion did not require a belief in God or in any other phenomena; it required only that one conform one’s behavior to religious requirements.

Is Veganism a Religion?

Using the criterion articulated above, and repeated by the district court in Ms. Chenzira’s case, it is clear that ethical vegans do sincerely hold “moral or ethical beliefs as to what is right and wrong … with the strength of traditional religious views.”  To be sure, not everyone who identifies herself as a vegan necessarily holds the equivalent of a religious faith.  Former President Bill Clinton, for example, has stopped eating animal-derived ingredients and has even described himself as a vegan.  He apparently eats the way he does because he has discovered, through research and consultation with medical experts, that a whole-food, plant-based diet low in fat not only slows, but can actually reverse heart disease.

I was delighted to learn that Bill Clinton has chosen to eat in this way (and I hope that his wife, former Secretary of State Hilary Clinton, joins him in this healthful approach to eating).  President Clinton’s choice, however, does not seem to be connected to conscience or to a moral or ethical commitment.  He wishes to eat healthful food, but he does not appear to believe (and has not, to my knowledge, stated) that it is unethical to consume flesh, secretions, or other products of animal agriculture.  Instead, he apparently avoids doing so for health reasons, much as many people go to the gym to exercise for health reasons.  And it would be far-fetched to claim that working out several days a week to stay healthy and fit is relevantly comparable to the practice of a religion.

Ethical vegans, by contrast, consider it wrongful for a person to participate in harming and slaughtering animals by consuming them or their hair, skin, or bodily secretions, even when doing so would pose no threat to the consumer’s own health.  Ethical vegans do not, moreover, generally consider it “wrong for me, but fine for you” to consume animal ingredients, in the way that consuming gluten or peanuts may be fine for me but highly undesirable for someone who suffers from celiac disease or peanut allergies, respectively.

Just as most of us consider it wrong for anyone to molest a child or to throw rocks at a puppy, vegans consider it wrong for anyone to consume cheese derived from a cow’s breast milk or to consume a slaughtered chicken’s flesh.  Stated differently, vegans, like members of religious faiths more generally, are moral realists.  We believe that some actions—such as participating in violence against defenseless human and nonhuman animals—are wrong.  That is one of the reasons that many ethical vegans serve our houseguests only vegan food in our homes, regardless of what the guests might ordinarily select when eating by themselves.

Ethical veganism, by contrast to many religions, dictates no position on supernatural beings or events, one way or the other.  Some vegans are members of a conventional, God-centered religious faith and share that belief system, while others consider themselves to be agnostics or atheists.  Nonetheless, an ethical vegan’s commitment to refusing flesh and animal secretions is often just as strong and sincere as a religious Jew’s commitment to avoiding leavened bread during the Passover holiday or a religious Muslim’s commitment to avoiding the flesh of pigs.

The Relevant Questions in Ms. Chenzira’s Case

Though Ms. Chenzira’s lawsuit against her former employer survived a motion to dismiss, the facts that emerge may or may not support her actually winning her case.  I think it would be difficult to challenge the sincerity of the plaintiff’s veganism, if she is prepared to forgo a flu shot, despite her employer’s willingness to fire her for doing so (and despite any concern she might have about becoming ill in the absence of the vaccine).  Refusing a flu vaccine is a far more challenging proposition, as I discussed above, than refusing to eat cholesterol-laced items like the flesh and bodily secretions of cows and chickens.

What makes the flu vaccine a more challenging case for the individual ethical vegan may also have ramifications for the balancing test that accompanies an employee’s request for religious accommodation.  The hospital has no legitimate interest in its employees consuming a cow’s breast milk, but it certainly does have a legitimate interest in keeping the hospital influenza-free.  If accommodating Ms. Chenzira’s ethical veganism places hospital patients at a measurably increased risk of becoming ill with the flu, then the defendant may be able to fire her for refusing the vaccine, her veganism notwithstanding.

Federal law forbids covered employers from failing “to reasonably accommodate” an “employee’s religious observance or practice” if the employer can do so “without undue hardship on the conduct of the employer’s business.”  To determine whether a refusal to exempt Ms. Chenzira from the mandatory vaccination policy, as the hospital has done, is legal, it may be helpful to know that the hospital appears to exempt from the mandatory vaccination policy those “[e]mployees with medical contraindications” to the vaccine.  The hospital does not, in other words, simply refuse to employ anyone who declines the vaccine.  It recognizes exceptions, though not for a conscientious objector, thus potentially engaging in discrimination against religion.  Further supporting the plaintiff’s position is the fact that a Customer Service Representative like Ms. Chenzira probably does not have patient contact in the way that medical doctors, nurses, and orderlies working at the hospital do, and the need to maintain her flu-free status is consequently less urgent.  Indeed, the hospital’s guidelines (as of November 2009) seem to concur in such prioritization, stating that “[t]he vaccine is being distributed first to high-risk areas of the medical center, with priority being given to employees in patient-care areas.”

The fact that some vegans would get the flu shot, even as Ms. Chenzira would not, has no direct bearing on the question whether her behavior is religious in nature.  Again quoting the Code of Federal Regulations, “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”  Different people, then, may have different ways of practicing a single religious faith, a reality that holds true for traditional religions as well.

While some Orthodox Jews, for example, will eat a salad at a restaurant that serves non-Kosher food, other Orthodox Jews would never use the cutlery at such an establishment, because it regularly comes into contact with non-Kosher food.  Similarly, some observant Catholics who oppose abortion as a matter of religious faith still reject the notion that the use of “artificial contraception” violates God’s law, while others accept it.  There is no one unified understanding of any religious faith, and an individual can therefore dissent from a majority’s understanding of her religion without disqualifying her conduct from coverage under laws protecting against religious discrimination.

How Will the Case Turn Out?

I predict that, if the facts are as alleged in the district court, then Ms. Chenzira will likely prevail in her claim that she qualifies for protection against religious discrimination in virtue of her ethical veganism.  What that protection provides for her in this case, though, will depend on whether the fact-finder concludes that granting Ms. Chenzira an exemption from the flu shot would endanger the patients in the defendant hospital.  Some employees appear already to enjoy exemptions from the vaccine requirement, a fact that makes a refusal to exempt Ms. Chenzira for ethical reasons seem arbitrary and unjustified.  That Ms. Chenzira’s “religion” is the reason for her refusal of the vaccine is important—it gives her refusal greater weight, under the law, than a refusal of the vaccine out of, say, a strong dislike of needles would have.  Whether this added weight is sufficient to require an exemption from the hospital’s vaccination policy remains to be seen.

  • Evil Overlord

    As a long time vegan, I’d have a hard time making the prima facie case that veganism is a religion. But, under the rules cited, it certainly qualifies. There’s no question that my ethical veganism is at least a strongly held a belief as the religious beliefs of many others, and more strongly than most.

    • Joe_JP

      It brings to mind Victoria Moran’s book “Compassion: The ultimate ethic,” which in effect defines veganism in a broad sense. If we look at it that way, it could very well be understood as a religion. It is an overall system of belief and action, not merely a matter of not using animal products for health or some other reason. This broader vision would be important.

  • Ra Maa Nu Amen Bey

    As a raw vegan I approve.

  • Lynn Musarra Davis

    I was vegan for years until I experienced some health issues and returned to limited dairy (egg whites), and fish. I love and respect all life but understand too that animals have been and were put her as a source of nourishment. I do not agree, however, with the courts decision branding veganism as a ‘religion’ in the true definition of the word, and see this case as another attempt at bending the system to the whims of a few. I have worked in the legal and casualty field for years and while I am not an attorney, I do have a legal background. The employer has a good reason for wanting their employees to be vacinated as she works for at a hospital. This to me, is not unreasonable given her proximity to sick and injured people. Had she worked at a non-medical facility, then it would seem unreasonable to demand the shot.

    • I’m curious about this statement: “I love and respect all life but understand too that animals have been and were put her as a source of nourishment.” Can you elaborate, please?

    • Bunny Love

      Then I assume you are okay with the slaughter and consumption of dogs and cats in Asia?

  • I admit when I first heard this story I assumed she refused because she believed the lies propounded by Jenny McCarthy and other anti-vaccination conspiracy theorists. This article is very informative and helpful (even if you misuse the term “cow’s breast milk” a couple times – cows’ udders are nowhere near the breastbone and the term breast milk specifically refers to human milk).
    I would still be surprised if she wins unless it is shown that the prioritizing scheme resulted in some people not getting vaccinated because of supply issues. If everyone besides those with health contraindication received the vaccine she ought to as well.
    Flu vaccine derived from insect protein is also available as an accommodation but I don’t suppose that’s any different to a vegan whether the source was eggs or ants.

  • It is The Beet-Eating Heeb’s understanding that Ms. Chenzira is not claiming that veganism is a religion. She is saying that veganism is an expression of her religious beliefs, which stem from the Bible. This is an important distinction that is often misrepresented in coverage of this case.

  • Captain Catfish

    A courageous exploration of the issue. Even as a religious person myself, I see it as good law to include deeply-held moral convictions in the definition of religion as protected against unlawful discrimination.

  • Max Herr

    “Growing up as an Orthodox Jew, I learned that my religion did not require a belief in God or in any other phenomena”

    If that’s what you learned about Orthodox Judaism, you need a refund from the Rabbi.

  • Max Herr

    You know what? Let’s just suspend all disbelief. To each his own. Live and let live. And we’ll see who gets resurrected or not, and what there is to eat on the serving line at the all-you-can-eat buffet in Heaven.

    We, as a nation, are fast approaching the end. And it seems as though we are accelerating to try to get there first.

  • JSJ

    As a Jain, I am delighted to know of the judge’s decision to deny the motion to dismiss. More attention to the issue is warranted. BTW, I have been in this country for 20 years and never had a flu shot, nor did any member of my family. None have had flu. We are not alone in this.

  • religion constituents a belief, veganism is based on hard facts. There is nothing religious about it, perhaps spiritual if you like the gaia theory.
    I have been a vegan for 2 years and I am always telling people the facts and it is up to them to make the conscious choice to be compassionate.

  • Gary L. Francione

    Another excellent essay by an extremely talented and richly textured legal mind.

    There can be no doubt that for many vegans, their beliefs in this regard, even if unconnected to any spiritual or religious notions, are “sincerely held with the strength of traditional religious views.” Indeed, given how traditional religious beliefs make little difference in the life and daily behavior of many people who claim to accept those beliefs, I would suggest that veganism has a much stronger claim here to be protected.

    Gary L. Francione
    Board of Governors Professor of Law and Katzenbach Distinguished Scholar of Law and Philosophy, Rutgers University

  • Thank-you for writing about this unprecedented case and bringing it to light. I tried many religions before I found the vegan ethic; which has replaced all religions and brought great meaning to my life. I believe in veganism like a religion; it is a deep conviction.

    • So, could one then claim veganism as a religion to circumvent the vaccine requirements for our school aged children?

  • Joe_JP

    Good discussion. The deciding factor to me would be the breadth of the exceptions. If the rule here was applied consistently, it could provide a limited case where there is a compelling state interest, done in a narrow enough fashion. But, if exceptions are applied to others, especially for those less in contact with the most at risk groups in question, she can very well win. Ethical veganism very well can be a broad ethical, “religious” sentiment, though some are vegans for other reasons.

  • I admit, I sometimes think of veganism as a religion. (Keep in mind, this is coming from an atheist who was raised by two scientists completely outside the religious establishment in America.) When I meet another vegan, I know there will be a deeper connection with that person. And it’s not like, “Hey, you like tennis too?” — it’s knowing there is a huge swath of ethical decisions that you agree on. And I have wondered if that is how people of similar religious faiths feel when they meet up. “Oh, you believe that too? Cool!” Thanks for the excellent column.

  • LT

    “Some employees appear already to enjoy exemptions from the vaccine requirement, a fact that makes a refusal to exempt Ms. Chenzira for ethical reasons seem arbitrary and unjustified.”

    I agree. Patients may be exposed to flu by other exempt employees anyway. Those already exempt employees may work closer to patients than this office worker; therefore posing a greater risk to patients than her. What makes their reasons for exemption any more important than hers?!

  • Nadia

    As a vegan, she was likely to not get the flu… As the diet, particularly if raw, prevents most illness

    • Joan

      I would say I am 90 per cent vegan and am always trying to do more. I’m not sure equating veganism with religion is the way forward. I am a great believer in personal choice being on a par with religion or culture. I am just as important when choosing not to eat or use animal based products as anyone doing so for religious or cultural reasons.

  • xuinkrbin

    While I do not know if being a Vegan qualifies as a religion under anti-discrimination law, I do know I am a Vegan for religious reasons.

  • timgier

    I’m sure that not all “vegans, like members of religious faiths more generally, are moral realists”.

  • doudie kay

    Nuts… to say the least,, who is more protected the immunity compromised patient or the nurrse who refuses a flu shot. If the patient catches the flu from her and dies. is this a case for premeditated murder?

  • Dixie Darling

    the flu shot has been proven to be 98.5% INeffective so why would anybody want to inject mercury and other poisons into their body when they don’t work in the first place. It is YOUR body and nobody should dictate what you can and can’t do to it

  • Christine Mattson Carlson

    Taken from Webster’s Dictionary : Religion is a specific fundamental set of beliefs and practices generally agreed upon by a number of persons or sects. It often contains a moral code governing the conduct of human affairs. So, by this definition of religion, even though vegans do not pray to the vegan gods, they practice a moral code and have a set of beliefs and believe that the best conduct of humans is that they should not eat meat nor consume any animal products or by-products, and that it is a good thing for the earth to do so. Veganism IS a religion by this definition

  • RDjackson

    Only a completely and utterly baseless, ridiculous and obscenely communist system would ever think of going out of their way, to either infringe on, or forcibly codify, any belief system of their ’employees’. Apparently the modern era of centralization is such that no one seems to understand the concept that ’employers’ should have nothing to do with your faith, at all, unless they also happen to belong to it. It’s not in their position to infringe on your rights, nor is it in their position to ‘condone’ or ‘codify’ it. No one really should be working for organizations that disagree with their beliefs, anyway. And employers shouldn’t be forced by big govt to hire employees whose beliefs THEY disagree with. Everyone should voluntarily separate based on beliefs. Unfortunately we live in the land of multi kulti globalization where everyone is forced by communist bankster faux capitalist overlords to surrender their rights and their belief systems in the name of socialist pipe dreams like ‘unity’ …. the propagandists of darkness LOVE to claim that the system of communism promotes ‘tolerance’ … in reality it promotes DESTRUCTION and it promotes INFRINGEMENT ON ALL BELIEF SYSTEMS by FORCING individuals to ‘co-exist’ with beliefs they find detestable … no vegan should be ‘forced’ or feel compelled to work for an ’employer’ who is too ignorant to understand their beliefs … no ’employer’ should be forced or compelled to employ vegans if that isn’t a philosophy they would desire to honour …. VOLUNTARY SEPARATION BY BELIEFS, ON A PERSONAL/CONTEXTUAL LEVEL, RATHER THAN A SOCIETAL LEVEL, IS NECESSARY FOR THE PERSERVATION OF LIBERTY, FREEDOM & DIVERSITY. END CENTRALIZATION NOW. SOCIETY MUST BE DECENTRALIZED.

  • crazymind99

    Why does this article even mention Bill Clinton being a vagatarian. He is lying again. The author is trying to revive his ethics and give her colleague’s the moral high ground in such a wasteful action.