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.